Jim Watson/AFP/Getty Images In The Arena Jeff Sessions Just Revived a Policy Nobody Supports Why is the Justice Department going backward on civil forfeiture?

Robert Everett Johnson is an attorney at the Institute for Justice.

Every day, law enforcement officials across the United States seize cash from motorists stopped at the side of the road. It’s called “civil forfeiture,” and the stories of abuse are legion: over $17,000 seized from the owner of a barbecue restaurant in Staunton, Virginia; over $13,000 seized from a former church deacon in DeKalb County, Georgia; and over $50,000 seized from a Christian rock band in Muskogee County, Oklahoma.

Civil forfeiture allows government to seize property based on the mere suspicion that it is connected to a crime. For instance, the fact that the cops think someone has too much cash is enough to warrant a seizure. After the property is seized, in a complete reversal of the way the American justice system is supposed to work, owners must prove their own innocence to get it back.


Public outrage over the practice has grown as more tales of abuse have been reported. And fortunately, over the past three years, 24 states have passed reforms to protect property owners and curtail civil forfeiture. Less fortunately, on Wednesday Attorney General Jeff Sessions announced a new federal policy that threatens to undermine those reforms.

Speaking in a small conference room surrounded by law enforcement officials, Sessions announced the federal government was rolling back an Eric Holder-era policy that had sharply curtailed so-called adoptive seizures. An adoptive seizure occurs when a state police officer seizes property and then transfers it to the federal government, which then forfeits the property under federal law. Importantly, state law enforcement gets to keep up to 80 percent of the proceeds of the forfeiture.

To understand why that matters, imagine you are a motorist whose cash is seized in a state with strong protections for property owners. Under state law, state police can take your property only if they convict you of a crime. But, using an adoptive seizure, state police can take your property without convicting you of anything and can rely on federal prosecutors to forfeit the money and pay a kickback of 80 percent to the local police department. Those state-law protections no longer protect you from anything.

In other words, by reauthorizing adoptive seizures, the attorney general’s policy will allow state police to circumvent protections for property rights put in place by state legislatures. Worse, because proceeds from the sale go to state law enforcement, the federal government actually pays state police to circumvent their own law. It’s practically an open invitation to corruption and abuse.

A March 2017 report from the Department of Justice’s own inspector general makes the point. The report found that law enforcement in states with strong protections for property owners were more likely to engage in adoptive seizures and concluded—based on interviews of state police—that the “primary reason” was “that their states’ forfeiture laws restrict law enforcement’s use of forfeiture.”

Bringing back adoptive seizures is a big step in the wrong direction. The federal government should be working with the states to protect private property rights, not mounting a rearguard action to undermine reforms.

Wednesday’s directive is particularly jarring coming from an attorney general who has previously embraced federalism—for instance, criticizing the Voting Rights Act as overly “intrusive.” Proponents of federalism often say that states are “laboratories of democracy,” and, by reforming their forfeiture laws, many states have embarked on an experiment to provide greater protection for property rights. The federal government accomplishes nothing by cutting off those experiments at the knees.

Or, perhaps it would be more fair to say the new policy accomplishes nothing good. In the year before former Attorney General Eric Holder abolished adoptive seizures, they totaled more than $65 million. Wednesday’s announcement reopens that funding source.

It is not hard to see the financial motivation underlying this change. That same March 2017 inspector general’s report found that eliminating adoptive seizures had “financially affected state and local law enforcement,” particularly in states with more “restrictive state forfeiture laws.”

Of course, everybody agrees that law enforcement needs to be funded. Law enforcement does important work keeping Americans safe, and somebody needs to pay for it. But law enforcement should be funded just like any other government activity—not by seizing cash on the side of the road.

When law enforcement profits from forfeiture, law enforcement has a pernicious financial incentive to take property. This incentive warps priorities, redirecting focus from the worst criminals to the fattest financial targets. For instance, a study of highway stops on I-40 in Tennessee compared seizures on the highway’s eastbound lanes (where cars are more likely to involve drugs coming in from Mexico) with seizures on the westbound lanes (where cars are more likely to carry cash). The study found that officers made 10 times as many stops on the westbound lanes. In other words, given the choice between stopping drug sales or confiscating money, law enforcement chose the money.

Nor is Wednesday’s announcement limited to highway seizures of cash. Using civil forfeiture, law enforcement can take all manner of property—including homes and businesses.

In Massachusetts, for instance, the federal government teamed up with state police to target the family-owned Motel Caswell. Prosecutors claimed the motel was subject to forfeiture because guests committed drug offenses in the privacy of their rooms. The motel owners ultimately won in court, but only after five years of litigation. Without free legal assistance from the nonprofit Institute for Justice, the owners never could have afforded to fight.

Or consider the case of Terry and Ria Platt, an elderly couple who were targeted for civil forfeiture after their son was pulled over for a window tint violation. When police found cash in the car—along with a small amount of marijuana—police did not stop at taking the cash. They also seized the car, although it is owned by Terry and Ria. They had to fight to keep their car, simply because they had lent it to their son.

These are exactly the kinds of abuses of power that Wednesday’s policy change will encourage. Indeed, the directive explicitly contemplates seizing peoples’ homes, even “where title or ownership lies with persons not implicated in illegal conduct.” The directive calls for “caution” in such cases, but does not institute concrete protections to prevent abuse.

Fortunately, states can fight back. Several states have passed measures limiting the ability of state law enforcement to transfer property to the federal government for forfeiture. Ohio, for instance, prohibits transferring property to the federal government unless the property is valued over $100,000. Pennsylvania, meanwhile, prohibits adoptive seizures outright.

Congress can fight back, too. At a minimum, lawmakers should move quickly to ban adoptive seizures. But more fundamentally, Congress should overhaul federal civil forfeiture laws to provide greater protection for property owners. If federal laws are updated to provide the same kinds of protections that are being instituted in the states, then state law enforcement will no longer look to Washington to sidestep reform.

Good bills have already been introduced. Rep. Jim Sensenbrenner (R-Wis.) has reintroduced the DUE PROCESS Act, which would restore the presumption of innocence for owners facing civil forfeiture, raise the standard of proof for those proceedings, and provide legal representation for indigent owners. Sen. Rand Paul (R-Ky.) has gone even further with the FAIR Act, which would ban federal agencies from retaining forfeiture proceeds and curtail law enforcement’s ability to use federal law to circumvent state reforms.

Practically everybody agrees that civil forfeiture is wrong. Indeed, a 2016 survey found that 84 percent of Americans oppose the practice. With or without the attorney general, now is the time for reform.