Back in December, in a rare show of respect for the citizens of this country, the Department of Justice suspended its “equitable sharing” asset forfeiture program. The program allowed state and local law enforcement agencies to trample citizens’ rights in seizing their property — in some cases large sums of cash — without so much as even charging them with a crime, let alone gaining a conviction.
The suspension of that program was laudable. But if you give the federal government enough time, you can count on it to resume bad policy. As reported by The Washington Post’s Christopher Ingraham on Monday, the Justice Department announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.
Forfeiture laws were enacted decades ago to help authorities prevent criminals from keeping the proceeds of their offenses (primarily drug profits) and to provide restitution to their victims. But federal authorities have warped the law’s application to the point that they now can take anything from anyone if they merely suspect that assets were used or might be used in the commission of a crime.
Ilya Somin, writing for The Volokh Conspiracy blog, noted: “Letting law enforcement agencies keep the assets they seize creates dangerous perverse incentives, and often leads to the victimization of innocent people — so much so that the practice has attracted opposition from across the political spectrum.”
As we’ve previously stated, although Americans are afforded the presumption of innocence in criminal proceedings — they are innocent until proved guilty beyond a reasonable doubt — those protections no longer apply to the public’s property. Under civil forfeiture laws, authorities can take and keep your stuff without charging you with a crime, without a warrant or indictment. They don’t have to arrest you. They don’t have to convict you. They don’t even have to write you a citation. And to get your stuff back, whether it’s cash, jewelry, a vehicle or even a house, defendants face the costly burden of proving their property was obtained lawfully, a standard that turns due process rights upside down.
Local law enforcement agencies and prosecutors are all too happy to utilize the civil forfeiture process, even right here in Nevada, working with federal authorities or independent from them, because they can used the seized assets to fund equipment purchases and cover operational expenses. That’s part of the perverse incentives that Mr. Somin points out — departments pursue assets instead of actual criminals, and the numbers back that up. Since the passage of civil forfeiture laws in the mid-1980s, the Institute for Justice reports that seizures have increased from $94 million to roughly $5 billion in 2014, an inflation-adjusted increase of more than 2,100 percent.
To call the Justice Department’s decision terrible would be an understatement. Nevada’s congressional delegation needs to put pressure on the department to rethink this reversal. Furthermore, state legislators, who last year had an opportunity to abolish asset forfeiture altogether but instead completely watered down Senate Bill 138, need to revisit the issue in 2017.