Leslie Herod and Nick Sibilla

Opinion contributors

In a refreshing display of bipartisanship, the U.S. Commission on Civil Rights on Friday slammed a new expansion of civil forfeiture announced by Attorney General Jeff Sessions. Under civil forfeiture, law enforcement can confiscate private property without ever filing criminal charges. Notably, the Commission, which is usually divided along bitter, partisan lines, voted unanimously to rebuke the Justice Department and called to end civil forfeiture.

As the Commission recognized, “scaling up rather than scaling back on this practice means more innocent Americans will lose their property.” Worst of all, the Sessions order widens a loophole that allows agencies to circumvent state safeguards specifically designed to limit civil forfeiture.

Fortunately, states like Colorado are fighting back. Thanks to a landmark reform bill that took effect on Aug. 9, the Attorney General’s directive will barely be felt in Colorado.

The new Justice Department policy revitalizes part of a federal forfeiture program called “equitable sharing.” This program allows local and state agencies to collaborate with federal agencies and forfeit property under federal law. Litigating under federal law — one of the laxest in the nation — lets police and prosecutors bypass restrictions they otherwise would face. Across the country, the property owner was never indicted in 81% of all equitable-sharing cases.

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Consider Mark Brewer, an Air Force veteran who lost his life savings because of this loophole. While driving through Douglas County, Nebraska in 2011, a deputy pulled him over. Upon searching the car, no drugs were found. But the deputy did come across $63,530 in cash. Without ever charging Brewer with a crime (or issuing him a ticket), the deputy seized Brewer’s money.

Instead of turning the case over to Nebraska prosecutors, the Douglas County Sheriff’s Office relied on an equitable sharing program called “adoption.” The sheriff’s office referred the seizure to the Drug Enforcement Administration (DEA), which “adopted” the case less than a month later.

By transferring the case to the DEA, the Douglas County Sheriff’s Office could skirt state law, which required proving beyond a reasonable doubt that seized property had criminal ties. But under federal law, prosecutors can prevail under a much lower standard called “preponderance of the evidence” (i.e. more likely than not), which caused Brewer to lose his cash.

His case was not an isolated incident. Brewer was just one of nearly 62,000 people who had their cash seized through equitable sharing since 9/11. Spurred by this torrent of abuse, in January 2015, then Attorney General Eric Holder curtailed adoptive seizures, which accounted for one-fourth of all equitable sharing seizures nationwide.

Now Sessions has undone even that moderate progress. His order reverses the adoption limit and hurtles the nation in the wrong direction.

Moreover, the “safeguards” Sessions promised only apply to cash under $10,000 and can be bypassed with approval by a federal prosecutor. As for real estate forfeitures, including homes, the directive merely asks that Justice Department officials “proceed with particular caution.”

That guideline would have hardly helped property owners like Tony Jalali, who owned a $1.5 million office building in Anaheim. One of his tenants was a medical marijuana dispensary. Although medicinal marijuana was legal in California, an undercover officer bought $37 worth of cannabis from the dispensary. Based solely on that minor purchase from one tenant, Anaheim police wanted to confiscate the entire building.

Police first reached out to California prosecutors, but were rebuffed. Since California is one of 14 states that requires a conviction to forfeit property, Jalali — who was never even accused of a crime — should have been protected.

Federal law, however, has no such requirement. In other words, equitable sharing provided a loophole for the Anaheim Police Department to collaborate with the DEA in an attempt to take Jalali’s property. Fortunately, after the Institute for Justice became involved, the federal government dropped the case in 2013.

Disturbingly, there was also a pecuniary motivation for agencies to hand over Brewer and Jalali’s cases to the DEA. Once a property is forfeited under equitable sharing, agencies may collect up to 80% of the proceeds — a higher payout than what Nebraska and California both permit. Nationwide, the Justice Department funneled a staggering $6 billion to local and state agencies through equitable sharing since 2000.

As the U.S. Commission on Civil Rights correctly realized, allowing law enforcement to keep what they seize “creates an inherent conflict of interest,” which undermines “public trust in the police.”

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But in Colorado, the state’s new law largely ends this perverse incentive to partner and profit, by banning police from collecting bounties. Under the reform, agencies can still participate in equitable sharing, but can only receive federal forfeiture proceeds if the seized property relates to a criminal case and is worth more than $50,000. Data analysis by The Institure for Justice found that 92% of all equitable-sharing forfeitures in Colorado were under that threshold. Together, these safeguards should protect hundreds of innocent people from federal confiscations.

Previously, circumvention ran rampant. Colorado agencies managed to collect nearly $50 million through equitable sharing — roughly four times the amount taken through state forfeiture laws. Now Colorado is one of just eight states where Sessions’ directive should have little impact.

For the remaining states, the Attorney General’s announcement gives a new urgency to close the equitable-sharing loophole and resist federal interference. Our constitutional rights are too important to forfeit.

State Rep. Leslie Herod is a Democrat from Denver and the author of House Bill 17-1313, concerning civil forfeiture reform. Nick Sibilla works at the Institute for Justice.

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