(Photo: Elvert Barnes; Edited: LW / TO)

In one of the few comments then-presidential candidate Donald Trump made about the criminal legal system, he promised to be the “law and order candidate.” Now as president, his appointment of Attorney General Jeff Sessions and his nomination of Neil Gorsuch to the Supreme Court show that the issue of civil asset forfeiture might be central to this promise.

Civil asset forfeiture allows law enforcement officials to seize cash and other assets they simply suspect have been used to commit a crime. No warrant, official charge, trial or even conviction is required under civil asset forfeiture laws to confiscate property, which is in clear violation of due process. Discontinued by the Justice Department in 2015 only for its federal own agents (although the “Equitable Sharing Program” was reinstated in March 2016), civil asset forfeiture could see a reemergence on the federal level during the Trump administration. Attorney General Jeff Sessions, for one, has extolled the virtues of civil asset forfeiture in the past. Civil asset forfeiture has already been expanding on the state and local level across the country. The return of civil asset forfeiture to the Justice Department could accelerate this expansion, allowing it continue without even the illusion of oversight.

With the potential addition of Neil Gorsuch, whose nomination could come up for a final vote as early as Friday, April 7, the Supreme Court might offer little in the way of resistance to such an expansion. As a federal judge on the Tenth Circuit Court of Appeals, Gorsuch ruled in 2012 that the vehicle of an individual driving without a valid license had been legally seized by law enforcement officers. Perhaps more disturbingly, Gorsuch additionally reasoned that even if the law enforcement officers had removed the vehicle from his possession only to forfeit it for profit, as the individual claimed, they had still done so lawfully.

A History of State-Sanctioned Exploitation and Theft

For people of color, who are disproportionately impacted by civil asset forfeiture, the use of state-sponsored extortion to deprive them of their resources is troublingly familiar.

In 1901, John Davis, a young African American man, was traveling to Goodwater, Alabama. Along the way, he was erroneously accosted by local constable Robert Franklin. Franklin demanded that Davis pay him the money he owed. When Davis refused, repeatedly asserting his innocence, Franklin arrested him.

Within the span of a single day, Davis was hastily convicted, following what could only be described as a kangaroo court. He was literally purchased from the court by Franklin, who then sold his labor to John Pace, a wealthy Tallapoosa, Alabama, landowner.

Powerless to stop either Franklin or Pace, Davis signed a contract that he could not read. He was trapped in the convict labor leasing system, having been targeted by restrictive laws purposely designed to criminalize African American life. Such laws were made possible by a loophole in the 13th Amendment, which rendered slavery a very real possibility for those convicted of crimes as a form of punishment.

These laws made inconsequential behaviors such as “loitering,” walking along the side of railroad tracks or speaking loudly in the company of white women crimes punishable by many years of imprisonment. New vagrancy laws criminalized anyone unable to offer proof of their employment at any given time. Prosecution was carried out injudiciously, effectively nullifying hard-won African American rights to due process and fair trials. Together, these laws represented the collusion of state and private interests through the criminal legal system towards the mutually beneficial aim of subjugating African Americans and profiting financially from that subjugation.

Profits indeed abounded from the stolen labor of tens of thousands of African American men and women throughout the South. By 1890, Alabama alone had made $164,000 — or $4.1 million in today’s dollars — from “leasing” people convicted of crimes.

To law enforcement officers and state officials, African Americans’ citizenship and constitutional right to due process were nothing more than words on paper. Greed meant more.

And in many ways, it still does.

Like John Davis, James Morrow was a young African American man traveling through the South when he was accosted by law enforcement in August 2007. On his way to a dental appointment, the Arkansas native was pulled over on the highway for the ridiculous charge of traveling too closely to the white dividing lines on the road. Officers searched Morrow’s car, violating his Fourth Amendment right to security from unreasonable search, claiming that it smelled of marijuana. Finding none, the officers instead arrested him and literally committed highway robbery, confiscating the $3,900 Morrow had saved to pay for his dental work and violating his right to due process in doing so. To further underscore their lack of regard for Morrow’s Fourth Amendment right, officers forced him to exchange his remaining valuables, including his car, for his freedom. Having successfully utilized civil asset forfeiture, officers abandoned Morrow on the side of the road with nothing but the clothes on his back.

The motivating factor behind civil asset forfeiture is not “to serve and protect,” but instead to observe and collect.

The principles at work that made convict labor leasing possible at the expense of African Americans endure in civil asset forfeiture. Like convict labor leasing, this unconstitutional practice is characterized by often egregious (and unsubstantiated) charges, violations of the constitutional right to due process, and profits from external and coerced sources of labor. Had John Davis and Robert Franklin lived in 2017, Constable Franklin might have stolen Davis’s property instead of his labor.

Indeed, the motivating factor behind civil asset forfeiture is not “to serve and protect,” but instead to observe and collect. Civil asset forfeiture empowers law enforcement to liquidate seized assets to fill their departments’ coffers, alleviating the financial strain on states to support their criminal legal systems. The Department of Justice alone shared $4.5 billion in seized assets with 8,000 state and local law enforcement agencies before 2015.

So strong are the financial incentives that law enforcement departments create wish lists of potential assets to seize — assets they feel they are entitled to, thanks to civil asset forfeiture.

When civil asset forfeiture is invoked, the founding principle of our legal system — the presumption that a person is “innocent until proven guilty” — can be ignored. Property owners must prove the innocence of the property in dispute, regardless of whether they themselves are innocent or guilty.

The burden of these seizures, which are increasingly happening under the guise of standard highway interdiction, falls heavily on people of color. Studies have shown that people of color are more likely to be stopped, searched and arrested by law enforcement officials than are whites, but are less likely to actually possess illegal contraband. Correspondingly, there exists a positive correlation between communities with predominantly African American populations and high arrest rates, making them especially ripe targets for civil asset forfeiture.

These statistics bear out anecdotally as well: While looking into 400 cases in which owners sued to have their property returned to them following seizures from civil asset forfeiture, The Washington Post found that the overwhelming majority of these owners were African American or Latino. According to Oklahoma Watch, in 2015, a whopping 65 percent of those from whom assets were seized by law enforcement in 10 counties across Oklahoma were people of color.

Civil asset forfeiture fits comfortably within a long historical trajectory, from convict labor leasing to the current model of property seizure. Under President Trump and Attorney General Sessions, the government will likely perpetuate this trajectory of state-sanctioned exploitation and theft.

But that doesn’t have to be the case. Concerned activists, policymakers and voters alike can pressure local and state representatives to follow the examples set by Montana, which as of 2015 requires a criminal conviction before property can be legally seized; Florida, which now forces law enforcement officers to arrest suspects before a given asset can be legally seized; and New Mexico, which requires a conviction or guilty plea before civil asset forfeiture can be legally invoked and issued budgetary reforms to reduce incentives for the practice. To allow this practice to continue not only undermines the integrity of our Constitution, but cements structural racism.

The impending confirmation of Neil Gorsuch to the Supreme Court, who has shown himself to be somewhat of a proponent of civil asset forfeiture, speaks to the depth of the expansion of this practice, and the urgency with which it must be addressed. As it stretches closer to the highest court in the land, it’s obvious that civil asset forfeiture is showing no signs of abating on its own.

We can either be mindful of the historical forces that made convict labor leasing and make civil asset forfeiture possible, or be doomed to perpetuate them.