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Thwarting reform efforts, Sessions increases civil forfeiture

by | Jul 25, 2017 | Criminal Defense

In a move former attorney general Eric Holder called “another extremist action,” Attorney General Jeff Sessions announced on Monday that he plans to retrench an old policy on civil forfeiture. In a speech before the National Association of District Attorneys, Sessions urged prosecutors to “develop policies to increase forfeitures” because “no criminal should be allowed to keep the proceeds of their crime.”

Civil forfeiture allows local, state and federal law enforcement agencies to seize money and assets from criminal suspects. The suspects may not even be charged yet when the forfeiture occurs, and the process nearly always takes place before trial.

The main idea was to place a crippling financial burden on criminals and criminal organizations, typically those engaged in drug trafficking or organized crime. If a substantial portion of the suspect’s or organization’s assets are seized, it can be difficult for them to afford quality representation.

At the same time, civil forfeiture can be quite lucrative for police and federal agencies. When suspects are unable to prove to a court that the seized assets are “innocent,” the police department or agency gets to keep them. In fact, in 2014 the New York Times published training seminar videos encouraging police departments to make an effort to seize more valuable property whenever possible.

Does civil forfeiture prevent criminals from keeping the proceeds of their crimes?

Among the many concerns raised by civil forfeiture is that it does take place before trial. That means that the person whose assets are seized is not, technically, a criminal. Another is the commonsense conclusion that allowing police agencies to keep seized property can only serve as an incentive to abuse the system. It may even encourage public corruption. There’s good evidence that innocent people are routinely subject to forfeitures.

In 2015, then-attorney general Holder issued a policy memo that sharply restricted the use of civil forfeiture by federal agencies. It also prohibited a second type of forfeiture, euphemistically called “adoptive forfeiture,” in which a federal agency seizes forfeited assets from the local or state police department that originally seized it. Holder’s policy directive prohibited that.

Sessions hasn’t released his own policy directive yet, but it is expected both to increase forfeitures overall and to reinstate adoptive forfeitures.

Do you think civil forfeiture is fair? Or do its problematic aspects make it too likely to be abused?