News: CJ Exclusives

U.S. steps up use of civil asset forfeiture, which is illegal in N.C.

U.S. Attorney General Sessions says expansion needed to attack drug cartels, but practice attacked by Justice Thomas and critics across political spectrum

U.S. Attorney General Jeff Sessions (Photo courtesy of U.S. Department of Justice)
U.S. Attorney General Jeff Sessions (Photo courtesy of U.S. Department of Justice)

It soon will be easier for the feds to take your property, even if you’re not convicted of a crime.

U.S. Attorney General Jeff Sessions announced Wednesday that federal law officials will expand civil asset forfeiture, meaning they can more easily take your property without pressing criminal charges or following state laws.

Civil asset forfeiture laws are the best way to fight drug crimes, Sessions said in a new directive that would reverse Obama-era protections against such laws.

In a press release, Sessions said, “civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels.”

The practice, which allows law enforcers to confiscate money and property for “probable cause” of drug crimes, is legal in many states. It became especially popular during the Reagan administration’s war on drugs in the 1980s.

Civil forfeiture is illegal in North Carolina, but a federal loophole thwarts the state’s citizen protections.

Under an “equitable sharing program,” states can partner with the federal government in forfeiture cases. Since state laws don’t apply under the program, North Carolina law enforcers are free to seize property and assets as they see fit.

Eighty percent of all property or money taken are funneled back to state and local law enforcers. The remaining 20 percent is collected by the U.S. Department of Justice, which has now stashed away $4 billion in seized assets. Congress can’t touch the money, which belongs to USDOJ.

In 2015 former Attorney General Eric Holder clamped down on portions of the equitable sharing program, partially blocking states from abusing the exception.

Those protections didn’t go far enough but drastically decreased the overall number of civil forfeitures, said Darpana Sheth, senior attorney at the Institute for Justice.

Sessions’ reversal of Holder’s reforms will give North Carolina officials a big incentive to sidestep state laws.

Innocent residents will suffer, Sheth said.

“When you have states that have better protections, it directly correlated to an increase in equitable sharing,” she told Carolina Journal. “It’s a big loophole for [local law enforcers] to use, and it really undermines principles of federalism — because even though you have states deciding what they want their priorities to be, state and local law enforcers can just circumvent those by using the federal system.”

Republicans and Democrats condemn the practice.

It’s unacceptable for the government to strip property or money from someone who hasn’t even been charged with a crime, said Susanna Birdsong, policy counsel for the ACLU of North Carolina.

“Respected voices across the ideological spectrum oppose this practice because it incentivizes policing for profit, disproportionately impacts innocent people of color, and frequently leads to government officials violating people’s constitutional rights,” Birdsong said.

Forfeiture laws have existed since America’s founding and were originally limited to enforcing customs laws for shippers. They were also used to confiscate illegal contraband, Sheth said.

Today, the laws are unrestricted and arbitrary.

“I think what’s driving these renewed pushes is quite frankly a matter of revenue. It’s not about crime fighting, because if anything in the statement he says no criminal should benefit from illegal activity, and we agree. And that’s why there’s criminal forfeiture,” Sheth said.

Civil forfeiture laws have reached their expiration date, said Tarrah Callahan, executive director of Conservatives for Criminal Justice Reform.

“The modern reality of civil assets forfeiture, however well meaning, has grave constitutional questions and represents an affront to our fundamental due process protections,” Callahan said. “Attorney General Sessions’ directive expanding the seizure of individual’s property without due process is a deeply concerning.”