On July 19th, the Trump DOJ, led by Attorney General Jeff Sessions, announced an expansion of Civil Asset Forfeiture (CAF) laws.
CAF is the questionable practice of law enforcement confiscating cash and other assets from suspects involved in illegal drug activities. In states where CAF is already the law of the land, many suspects never recoup their assets from the government, even if they are never charged criminally, or if they are charged and found innocent. In other cases, folks become entangled in lengthy and expensive court battles with the government to take their assets back.
In a famous, albeit extreme example of CAF in practice, a Philadelphia husband and wife had their home seized when their son was accused of selling drugs. He had been arrested with $40 worth of heroin previously, but had never been charged with trafficking the high-powered substance.
About 90 days after the arrest, the police showed up at the home, threw the family out on the street, shackled the doors, and had the electric company shut off the power. There was no arrest, no criminal charge, no courtroom hearing – just a lawsuit against the very house itself.
After eight days, the city let the family back in on the condition that they kick their son out permanently. Imagine being manhandled this way by the government? It sounds like something that would happen in the third world, not to an average middle class family in America, where innocence is assumed until guilt is proven.
But that’s the premise behind CAF. In most cases, the burden is on the victim of the lost assets to prove innocence before they’re entitled to retrieve their property.
According to the same article, the Philly police have filed about 7,000 CAF petitions in the last year alone. In the last facade, they’ve confiscated $64 million in property and cash, and have used at least $7 million of that money to directly pay officers’ salaries. Most would call that a serious conflict of interest.
Another case of CAF involved a 22 year old moving from Michigan to Los Angeles with the hopes of becoming a producer. He carried his $16,000 savings in cash. Upon a pit stop in Albuquerque, he was approached by DEA agents, questioning him as to why he was carrying so much cash to Los Angeles, which they called a “drug hotspot.” Without being charged with a crime, the police confiscated the young man’s money. Now he’s paying a lawyer to fight the DEA.
CAF calls into question our 5th amendment right to due process, as well as our most basic right to own property. The Philadelphia family who had their home confiscated did not receive an inkling of due process through the entire process. They were deprived of their property without criminal charges, convictions, or a trial by a jury of their peers.
Conservatives are denouncing CAF laws as unconstitutional. Supreme Court Justice Clarence Thomas, perhaps the top conservative figure in the judiciary, seems to agree. Recently in the case of Leonard v Texas, Justice Thomas said that CAF has “led to egregious and well-documented abuses” by law enforcement. In legalese he affirmed the sentiment, saying that the practice doesn’t align with the constitution because it “presumably would require the [Supreme Court] to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.” Basically, he’s saying that there are no other laws that allow for the confiscation of property without due process, and thereby CAF doesn’t align with laws that are already in place that protect Americans from having their property confiscated in this manner.
This matter is parallel with an issue that was in the forefront towards the end of the Obama presidency. Democrat Senators introduced “No Fly, No Buy” legislation that would have prevented those on the “No-Fly” list to purchase firearms. The bill was rejected by House Republicans on the grounds that the list is often inaccurate, sometimes including people who aren’t suspected of terrorism at all. Rather, some end up on the list due to clerical errors, like an 18 month old girl who was removed from a JetBlue flight in 2012 after being mistakenly put on the list.
President Obama, for his part, chimed in on the issue.
He said in a speech, “Right now, people on the no-fly list can walk into a store and buy a gun. That is insane.”
Here’s the thing: that’s not an insane premise. It would be insane to believe that the government has the right to usurp the property of its citizens without due process of law. It’s the same principle that makes CAF unconstitutional.
Overall, President Trump has done a fantastic job thus far. In the face of great adversity, he’s delivered on many of his campaign promises, and seems intent on continuing to do so. This move, however is a blunder.
The DOJ has much more pressing issues, including removing illegal aliens from and securing our borders. The government contends that CAF laws slow down the drug trade by seizing cash and other assets that may help criminal organizations like Mexican cartels stay afloat. Wouldn’t building a wall accomplish the same goal – with many more positive externalities – and without the hassle of a legal battle?
I’m looking forward to the Trump administration backtracking a bit to get this one right.