Expansion of federal forfeiture threatens property rights

Forfeiture has been a part of the American justice system for more than 200 years. It has been a tool used by law enforcement – both local and federal – to fight criminal activity, such as drug trafficking.

However, over the years, there have been numerous cases of abuse in the forfeiture process, specifically in civil cases. These abuses threaten citizens’ constitutional rights, put unnecessary burdens on innocent Americans, and weaken our faith in law enforcement.

{mosads}While I disagree with the decision by Attorney General Jeff Sessions and his Department of Justice to expand the federal asset forfeiture program in the coming months, the expansion makes it more important than ever that Congress pass reform measures.  

I have long been a supporter of criminal asset forfeiture – the seizure of property after the conviction of crime—but with civil asset forfeiture, law enforcement has a direct economic incentive to take people’s property without ever even charging them with a crime. 

Civil forfeiture cases make a mockery of the Constitution and its protection of private property by creating the legal fiction that the property itself is the defendant in a crime. The law pretends that inanimate objects have committed wrongdoing and then assumes that property should be entitled to fewer procedural protections than people. For innocent individuals, getting seized property back can be a long, onerous, and often prohibitively expensive process. 

According to a Washington Post investigation, nearly 62,000 cash seizures have occurred since Sept. 11, 2001, and only a sixth of those cases were legally challenged. This is partly due to the high costs of bringing legal action against the government. Because law enforcement can seize assets despite the innocence of a property owner, many cases harm lawful citizens and places the burden of proving innocence on them. If an individual can prove their property was not linked to criminal activity, their seized assets can be returned. However, this often involves months – sometimes years – of judicial battles, requiring costly legal representation. 

In 41 percent of civil asset forfeiture cases where there was a challenge, the government returned the seized money. This is a remarkably high error rate for seizures. Worse still, 40 percent of those cases took more than a year to resolve and required individuals to sign agreements stating they would not sue the police.

Current forfeiture laws put law-abiding citizens at risk for unwarranted seizures, and the DOJ proposal to expand programs supporting such laws will only make the problem worse. The suggested changes to federal civil asset forfeiture laws will circumvent state laws enacted in 13 states around the country, increasing incentive for local law enforcement to participate in the federal program and diminishing the Tenth Amendment. 

Although it’s true that in many cases, seizures aid in the apprehension and conviction of known criminals and drug traffickers, some put superfluous burdens on innocent people. Reform to the current federal forfeiture laws is necessary to curb abuse, restore confidence in law enforcement, and help citizens protect their property rights. It’s imperative that we add more due process to forfeiture proceedings, and expanding forfeiture without increasing protections is, in my view, unconstitutional and wrong.

In 2000, Congress took steps to begin the reform process by passing the Civil Action Forfeiture Reform Act (CAFRA). The legislation required the government to procure a warrant upon probable cause before seizing property, to send a written notice of a seizure to property owners, and compelled the government to present clear evidence that the seized property was used for criminal activity. It also gave innocent owners the ability to retrieve their seized property faster.

In both the 114th and 115th Congresses, I introduced the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act, which builds upon the reforms in CAFRA by increasing transparency in the process, adding protections for innocent owners, and implementing additional protections to ensure property owners have the opportunity to contest seizures. It also improves the notice that the government must give property owners, makes it easier for them to be heard by a judge, and entitles property owners to an initial hearing, where they can retrieve confiscated property immediately if it was not seized according to the law. The legislation also increases the availability of attorney fees for innocent owners, and places a higher burden of proof on the government.

The government should not be in the business of incentivizing forfeiture of property from innocent Americans, but by expanding federal asset forfeiture programs, that’s exactly what the Department of Justice is doing. While I urge the Department to reverse its decision, if we are going to increase the number of federal forfeitures, it is more imperative than ever that we also pass the DUE PROCESS Act.  

Forfeiture is a critical tool in the fight against crime, but it is also vulnerable to abuse. We must be vigilant in order to protect innocent citizens, preserve honesty in policing, and curb unwarranted searches and seizures. 

Sensenbrenner represents Wisconsin’s 5th District and is a member of the House Judiciary Committee.

The views expressed by this author are their own and are not the views of The Hill.