Attorney General Jeff Sessions unveiled new changes on Wednesday to part of the Justice Department’s civil asset forfeiture program.
The controversial practice allows the federal government to coordinate with state and local officials to seize cash, drugs, guns and other assets from suspects before they have been convicted of a crime.
Sessions faced sharp bipartisan blowback after previewing plans to “increase forfeitures” earlier in the week, but he and Deputy Attorney General Rod Rosenstein emphasized Wednesday that the department added new rules to help curb abuses of the program that they say won’t step on suspects’ constitutional rights.
Rosenstein, the Justice Department’s No. 2, held his first on-the-record session with reporters to discuss the policy change on Wednesday, declining to discuss any other topics, including when he was pressed about whether he could continue to oversee the special counsel’s Russia probe given his role in the firing of former FBI Director James Comey.
“As any of these law enforcement partners will tell you, and as President Trump knows well, civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels,” Sessions told law enforcement officials gathered at DOJ headquarters. “Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits and better training.”
Under a process referred to as “adoption,” the federal government is permitted to take the assets seized by local law enforcement agencies “whenever the conduct giving rise to the seizure is in violation of federal law” and share in the proceeds, according to the new directive signed by Sessions. However, local officials must now show the seizure is justified by probable cause and suspects are given notice and opportunity to challenge the forfeiture.
Former Attorney General Eric Holder had banned federal agency adoption of property in early 2015, except in limited circumstances, but President Donald Trump indicated in a February meeting with sheriffs he wanted to rescind Holder’s restrictions.
Rosenstein stressed to reporters that the asset forfeiture policy change was a matter of “common sense” and simply part of the department’s larger goal to fight drug trafficking crimes, as opposed to any effort to appease any particular constituency.
The new policy was met with immediate approval from the National Association of Assistant US Attorneys.
“The new policy recognizes the important role asset forfeiture plays in depriving criminals of the lifeblood that drives criminal organizations,” NAAUSA President Lawrence J. Leiser said in a statement. “The notion that property can be forfeited under federal law based on mere suspicion, as some press accounts have suggested, is flat-out wrong.”
But the department’s shift also drew swift disapproval from several Republicans Wednesday.
“Back in May, I encouraged the Department of Justice to review its policies on civil asset forfeiture in light of increasing indications from the Supreme Court that this practice is constitutionally suspect,” Sen. Mike Lee said in statement. “Instead of revising forfeiture practices in a manner to better protect Americans’ due process rights, the DOJ seems determined to lose in court before it changes its policies for the better.”
And some legal advocacy groups said Sessions’ attempt at imposing new safeguards missed the mark.
“The problem is that we are not talking about criminals. We are talking about Americans who have had their homes, cars, money and other property taken through civil forfeiture, which requires only mere suspicion that the property is connected to a crime,” said Kanya Bennett, legislative counsel for the American Civil Liberties Union. “This program is egregiously at odds with our due process rights.”
The Institute for Justice in DC, which has been battling civil asset forfeiture for years, said the program essentially served as a way for law enforcement at the state level to do an end-run around its own legislative reforms.
“The Justice Department’s new forfeiture directive restores the ability of state and local law enforcement to reap 80% of forfeiture proceeds by using federal forfeiture laws to circumvent protections put in place by state legislatures,” said Darpana Sheth, a senior attorney for the group. “We have consistently warned that the modest reforms put in place in 2015 could be rolled back with the stroke of a pen — and that is precisely what Attorney General Sessions has done today.”
