The Volokh Conspiracy

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Jeff Sessions' attack on federalism and property rights


Attorney General Jeff Sessions.

Earlier this week, Attorney General Jeff Sessions announced that the Justice Department is going to expand asset forfeiture—a badly flawed policy under which the government is allowed to confiscate the property of people suspected of a crime, even in many cases where they are never charged, much less convicted. The new policy would reinstate and expand a program under which the federal government "adopts" forfeiture cases initiated by state and local law enforcement agencies, and then lets the state agency keep 80% of the proceeds through "equitable sharing," thus creating a strong financial incentive to pursue forfeiture cases.

Sessions claims that the policy is needed to ensure that criminals are not "allowed to keep the proceeds of their crime." In reality, however, some 87% of federal asset forfeiture cases do not require any prosecution or conviction. Often, authorities seize property they think might potentially have been used to commit a crime, even if the owner did not violate any criminal laws himself. The opportunity to profit from the sale of forfeited assets creates perverse incentives to seize as much as possible.

In recent years, asset forfeiture has attracted widespread opposition on both right and left, because it undermines property rights, harms numerous innocent people, and especially tends to victimize the poor and minorities, who often lack the resources to contest seizures. In many states, owners have little opportunity to contest seizures, thereby enabling authorities to hold on to their seized property for months or even years, without so much as a hearing. In my view, such practices violate the Due Process Clause of the Fourteenth Amendment, but the Supreme Court has yet to rule on the issue. Justice Clarence Thomas also raised serious concerns about the constitutionality of asset forfeitures in a recent opinion. Sessions' expansion of asset forfeitures has already inspired a petition asking Congress to reverse it, joined by groups as varied as the ACLU, the libertarian Institute for Justice (which has long been active on this issue), the NAACP, Americans for Prosperity, the Goldwater Institute, and others.

In 2015, Obama attorney general Eric Holder instituted a new policy significantly curtailing, though by no means abolishing, equitable sharing. Sessions has now reversed Holder's policy, and fully reinstated equitable sharing.

The situation might potentially get even worse than it was in the pre-Holder era, because Sessions also seeks to expand the federal role in the War on Drugs, including even ramping up marijuana prosecutions in states that have legalized it. The War on Drugs is a major source of federally-sponsored asset forfeitures. The restoration of equitable sharing, combined with greater aggressiveness in the War on Drugs, will create many more opportunities for asset forfeitures, and ensure the victimization of many more innocent people.

In fairness, Sessions' policy includes a few modest safeguards for property owners:

The Justice Department did include several requirements that it says will safeguard the due process rights of property owners. The directives require state and local police to provide additional information showing probable cause that a crime occurred before federal authorities will adopt the seizure. Seizures of under $10,000 will have to be accompanied by a warrant, a related arrest, or the seizure of contraband. Absent those provisions, a U.S. attorney would have to sign off on an adoption.

I doubt these restrictions will do much to curb abuses. A showing of "probable cause" is a long way from actually convicting anyone of a crime, and the alleged crime in question does not even have to be committed by the person whose property is seized. It is also notable that most of the restrictions can be set aside if a US attorney decides to sign off on the adoption anyway. as conservative Republican Rep. Darrell Issa puts it, "I'm glad that at least some safeguards will be put in place, but their plan to expand civil forfeiture is, really, just as concerning as it was before."

Radley Balko rightly points out that Sessions' new policy is a menace to federalism as well as property rights. Many states have enacted reforms preventing law enforcement agencies from profiting from asset forfeitures, thereby reducing incentives to seize the property of people who have not been convicted of any crimes. Equitable sharing circumvents these state laws, by enabling police to profit from seizures through payments funneled through the federal government. As a result, law enforcement agencies will have incentives to prioritize drug cases that are likely to net them money over violent crime and other objectives that state governments might value more.

Control over the funding and priorities of state and local law enforcement is a core element of state sovereignty. Sessions' asset forfeiture policy is a frontal attack on it. Sadly, this undermining of federalism is of a piece with his positions on sanctuary cities (where Sessions is a leading advocate of Trump's efforts to undermine constitutional federalism in this area) and marijuana enforcement (where Sessions wants to ride roughshod over states that have legalized pot).

Sessions' eagerness to sacrifice federalism and property rights to the War on Drugs was entirely predictable, based on his longstanding record prior to becoming attorney general. It was among the reasons why I urged the Senate to "just say no" to his nomination for the position of attorney general. At least for the moment, we are stuck with Sessions. But hopefully it is not too late for the country to "just say no" to his ill-conceived asset forfeiture policy.