One of the most flagrant attacks upon Liberty and the due process of law is the federal government’s program of civil asset forfeiture. This program allows the police to confiscate people’s cash and other property if they “suspect” that it is linked to criminal (mostly drug) offenses – even if the subjects are never even charged with a crime! And, of course, the police have incentives to seize people’s property, since they get to keep part of the booty. Furthermore, when seizures occur, it is up to the owners of the property to file a lawsuit to get it back, and even then they have the burden of proof to show that it was not gained from a criminal offense. Some of those programs were pared down under President Obama, but US Attorney General Sessions recently announced a policy that will remove many protections from these “policing for profit” programs.
Most people agree that cash and property gained by illegal means should be forfeited to the government or otherwise returned to the victims. But that should only occur with two conditions:
- First, forfeiture could only occur after the subjects have been charged with and convicted of a criminal offense, with the same jury concluding that the property was obtained as a result of that illegality.
- Second, the forfeited property should go into the general fund, and not to any particular agency.
That will remove improper incentives. Otherwise, at the very least, all of these forfeitures should be considered to be a violation of the Eighth Amendment to the Constitution, which prohibits the imposition of excessive fines. Liberty demands that Attorney General Sessions rescind this new policy! Fortunately, all of us have the opportunity to have our voices heard by contacting our members of Congress and demanding the passage of the FAIR Act to reform federal asset forfeiture laws and stop incentivizing law enforcement seizures without a criminal conviction!
-Judge Jim Gray