Caleb Brown: This is the Cato Daily Podcast for Monday, July 24th, 2017. I am Caleb Brown. Attorney General Jeff Sessions has expanded civil forfeiture, ending restrictions on the practice that had been imposed in previous administrations. Forfeiture is a process by which the government takes property from people who have not been convicted of, or are even charged, necessarily, with a crime. Cato’s Clark Neily comments on the change.

I always go back to previous attorneys general when it comes to civil asset forfeiture because I can remember Eric Holder, of course, was at least in policy somewhat more skeptical of civil asset forfeiture than previous attorneys general. Loretta Lynch, when she was being discussed and when she was testifying before the Senate, referred to forfeiture as a great tool, a wonderful tool, and drew no distinction whatsoever between criminal and civil asset forfeiture. And now we have Jefferson Beauregard Sessions III as Attorney General and he is seeking to not only undo policies of Holder’s time in office, but also re-expand civil asset forfeiture.

Clark Neily: Yeah, so that’s right. I mean two points to start off with here that I think are really important. The first is to understand the difference between civil forfeiture and criminal forfeiture. A criminal forfeiture occurs after someone has been convicted of a crime, either in open court or through a plea bargain, and then the government proves that the property that they wish to seize was in fact either the proceeds of or related to those crimes in some way. That is criminal forfeiture and nobody really has a beef with that. Civil forfeiture is the real problem here. Civil forfeiture occurs when the police or other law enforcement seize your property simply by asserting that it is connected with crime somehow, but never actually proving it and in most cases never even charging the property owner with a crime. So, civil forfeiture is much looser, very few procedural due process protections, and, not surprisingly, that’s why law enforcement likes it so much. The other point I’d like to make is that I do not use the term civil asset forfeiture for the following reason: It tends to support the government’s narrative that there are, in fact, assets. Cars that were used to distribute drugs, or boats that were used to go pick them up, or houses where the activity was centered. And, in fact, that’s a really false narrative. Many, many, many civil forfeitures are not of assets whatsoever. They are simply of cash. So, for example, in Washington D.C., according to a class action suit that was brought some years ago, the median amount of a cash forfeiture in Washington D.C. was $120. In Philadelphia, $178. These are not assets, this is people’s pocket money.

Caleb Brown: So, in states like New Mexico, Minnesota, and I believe a few other states have made some gestures toward restricting the ability of the feds and local police to work together. What does this change in policy mean?

Clark Neily: So, this is really important because most forfeitures do occur at the state level and there has been a massive tidal wave of reform in the states. 24 states have changed their laws to tighten up civil forfeiture and 14 states – or, I should say, of those 14 states – have actually eliminated it. In 14 states, including New Mexico and Minnesota, there is no more civil forfeiture. The police actually have to get a conviction before they can forfeit property. That is exactly how it should be and civil forfeiture raises – decides extremely troubling policy considerations because of its perverse incentives and the way that it encourages policing for profit. Civil forfeiture raises extremely serious constitutional concerns, as Justice Clarence Thomas pointed out in a recent concurrence from a denial of certiorari in a case involving forfeiture. He wrote a very short but powerful opinion in which he expressed his concern that it may well be that civil forfeiture cannot be squared with the Constitution. I think he is exactly right about that.

Caleb Brown: Alright. So, adoptions are – it seems if you are concerned about having, letting states have their prerogatives reign, that is if you are concerned about the problems of creeping federal government encroaching upon the powers of state governments to make rules and enforce those rules, civil forfeiture is a problem, but this wider adoptions is a special problem.

Clark Neily: That is absolutely right. Civil forfeiture, as exercised or as implemented by the federal government, among its many, many problems also represents a complete disrespect of principles of federalism. Why is that? Well, the reason is that because when the federal forfeiture law enables the feds to work together with state and local governments, and I should say, actually, state and local law enforcement to circumvent state-level policies about civil forfeiture. So, take one of the states that I have named, or any of the 14 states that have eliminated civil forfeiture as a matter of state policy. The federal government can help state law enforcement officials circumvent that restriction simply by working together, for example, in a joint task force, so that the feds essentially use federal law as the basis for a forfeiture but then through a program called Equitable Sharing the federal government can then kick back up to 80% of the proceeds from a civil forfeiture that is undertaken as part of a joint federal and local task force. Then, you also mention adoptions. Adoption is a particularly troubling federal program. It is the one that Eric Holder eliminated back in January of 2015 and that Jeff Sessions has just reinstituted, and what that policy involves is even when the feds and the locals are not working together, adoption enables a local law enforcement agency that has the ability to seize some property but it wouldn’t be permitted to do so under state law because it would be a civil forfeiture, they can simply call in the feds. The feds will come in through adoption, seize that property, ostensibly under federal forfeiture statutes, and then, again, kick up to 80% of the proceeds back to the locals in direct contravention of state policy. This is an extraordinarily troubling and extraordinarily disrespectful policy when it comes to federalism, and it is so unfortunate that people like Jeff Sessions extoll federalism in the abstract, but then when it stands between them and a policy they wish to pursue, it goes right out the window, which is, in fact, exactly what his announcement signifies, his recent announcement.

Caleb Brown: And it is my understanding that kicking back that 80% when a local police agency seizes property, they call in the feds to forfeit that property, expecting that 80% comes back. The 80% that comes back, is it true that there are strings attached, that is the federal government says, look, this has to go right into the budget of this police agency, it can’t be sent to the state capitol for a decision about what to do with it there?

Clark Neily: Yeah, that’s right. And so, actually, let’s be clear. It is not strings attached in the sense that there are some limits on what the state can do with it or that it provides any meaningful oversight or transparency, it is a further perversion of state policy. So, there are some states where civil forfeitures have to go into a general fund, or even into an education fund, as opposed to into a law enforcement fund. And, of course, the point of that is to try to break some of these perverse incentives that we talked about earlier. One of the things that happens with the federal Equitable Sharing program is the feds can direct the receiving law enforcement agency, the agency that gets the 80% kickback, to use that money only for law enforcement purposes, again, in yet another direct contravention and perversion of state policy and ultimately perversion of federalism. Federal – civil forfeiture is a terrible policy across the board, but the way it is implemented by the federal government is even worse than just ordinary civil forfeiture. And I want to add something here. We could literally spend the rest of the day talking about abuse after abuse after abuse. To take just one example, a case that came up towards the end of my tenure at The Institute for Justice, a manager of a Christian – Burmese Christian rock band was returning home in Dallas from a show. He had $53,000 in cash that had been raised by this Burmese Christian rock band for charitable purposes, including an orphanage back home. That money was seized in Muskogee, Oklahoma, on the basis of absolutely no probable cause whatsoever, just a busted taillight. But they wanted the money, so they took it. And it wasn’t until IJ got involved and ultimately handed the story over to The Washington Post, where it went to number one on their website. That is what caused the money to be given back to this innocent person. There are going to be abuses like that with this program, and Jeff Sessions is going to have 100% ownership of those abuses. When those abuses occur by the federal government, which they will, he will have ownership of those abuses. And when the abuses occur at the local level in an equitable sharing program that the federal government is participating in, Jeff Sessions will have ownership of those abuses. Civil forfeiture is terrible policy. It is almost certainly unconstitutional. It leads to tremendous abuses, and I look forward to Jeff Sessions having complete, 100% ownership of those abuses when they inevitably occur.

Caleb Brown: Clark Neily is vice president for criminal justice at the Cato Institute. Subscribe to and rate the Cato Daily Podcast at iTunes and Google Play, and follow us on Twitter, @CatoPodcast.