Senator Rand Paul, joined by a bipartisan coalition of senators and members of the House, just reintroduced legislation intended to limit the government’s increasingly pernicious efforts to take citizens’ personal property without any indication those individuals have committed a crime or done anything wrong.
The practice is called “civil asset forfeiture,” and it has become one of law enforcement’s most egregious and unconstitutional practices.
When law enforcement officials catch someone committing, or thought to have committed, a crime, they may seize property—including large sums of money, cars, homes, stolen goods, etc.—presumed to be connected the crime.
If the suspects are convicted, law enforcement officials will generally keep those seized assets, known as criminal asset forfeiture. And when those assets are in the form of cash, they can be a nice addition to the agency’s often tight budget.
But increasingly law enforcement officials at the local, state and federal levels have been seizing assets that aren’t necessarily involved in a crime, and may never even bring criminal charges against the person who owned the assets. Worse yet, some officials have made it difficult, if not impossible, for those innocent individuals to recover their assets, which can be worth thousands of dollars.
Paul’s legislation is called the Fifth Amendment Integrity Restoration (FAIR) Act, and it requires the federal government to “establish, by clear and convincing evidence, that there was a substantial connection between the property and the offence.”
The Fifth Amendment to the U.S. Constitution asserts that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Civil asset forfeiture deprives people of their property without due process.
The FAIR Act requires a hearing within 14 days of the forfeiture to demonstrate probable cause, so the government can’t just hold the assets indefinitely, as it has been doing.
Paul introduced similar legislation in 2014, when Senate Majority Leader Harry Reid controlled the Senate’s agenda, but it went nowhere. Reid had no interest in trying to stop the government from robbing citizens of their assets. Heck, that’s what he lives for, whether it’s in the form of asset forfeiture or his preferred method of robbery: new tax.
But with new Senate leadership, the bill may get some traction. And it might even get a presidential signature. Attorney General Eric Holder just announced the end of the Justice Department’s “Equitable Sharing” program, which indicates the Obama administration may be listening to the public.
According to The Washington Post:
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.
The program has enabled local and state police to make seizures and then have them ‘adopted’ by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
In other words, law enforcement at all levels had a financial incentive to take that property and not return it.
WaPo concludes, “Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.” Even so, it’s only a small step in the right direction.
But will Loretta Lynch, President Obama’s nominee to replace holder, embrace Holder’s changes? It doesn’t look promising.
The Wall Street Journal writes: “As a prosecutor Ms. Lynch has also been aggressive in pursuing civil asset forfeiture, which has become a form of policing for profit. She recently announced that her office had collected more than $904 million in criminal and civil actions in fiscal 2013, according to the Brooklyn Daily Eagle.”
Paul’s legislation is a good start, but it’s only a start. It will likely take a new administration that is committed to the Constitution and the rule of law before civil asset forfeiture is effectively reigned in.