Attorney General Jeff Sessions should reconsider his plan to expand the use of civil asset forfeiture in the service of the so-called war on drugs. If he fails to do so, Congress should reconsider it for him — indeed, Congress ought to act on asset-forfeiture reform irrespective of the attorney general’s views on the matter.
Asset forfeiture is a constitutionally questionable practice whereby property — often cash — is taken from citizens by police agencies who suspect, or at least say they suspect, that the property may have been come by illegally, often through the drug trade. Cash seized through asset forfeiture can be used by police departments, as can cash generated through the sales of seized property such as vehicles. The fact that police personnel can materially benefit from forfeiture proceedings creates a conflict of interest that would render forfeiture problematic even if it were used with discretion in accordance with the highest degree of procedural protections for the rights of the accused.
There is such a thing as criminal forfeiture, but what is at issue is mainly civil forfeiture, meaning property seizures that are conducted under civil law rather than the criminal-justice process, which has more robust protections and higher standards of evidence. This produces perverse outcomes in which American citizens are punished by their government for crimes with which they have not even been charged, much less convicted. In the past decade, the Drug Enforcement Administration alone has seized some $3 billion in cash from people who have not been charged with any crime.
This is almost certainly unconstitutional, something that conservatives ought to understand instinctively. Like the Democrats’ crackpot plan to revoke the Second Amendment rights of U.S. citizens who have been neither charged with nor convicted of a crime simply for having been fingered as suspicious persons by some anonymous operative in Washington, seizing an American’s property because a police officer merely suspects that he might be a drug dealer or another species of miscreant does gross violence to the basic principle of due process. No doubt many of the men and women on the terrorism watch list are genuine bad guys, and no doubt many of those who have lost their property to asset forfeiture are peddling dope. But we are a nation of laws, which means a nation of procedural justice. If the DEA or the LAPD wants to punish a drug trafficker, then let them build a case, file charges, and see the affair through to a conviction. We have no objection to seizing the property of those convicted of drug smuggling — or of crimes related to terrorism, or many other kinds of offenses. We object, as all Americans should object, to handing out these punishments in the absence of a criminal conviction.