The Big­gest Thief – Feds to Take In­no­cent Peo­ple’s Prop­erty Seized by State and Lo­cal Agen­cies

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On July 19, 2017, At­tor­ney Gen­eral Jeff Ses­sions signed an Ex­ec­u­tive Order that sig­nif­i­cantly in­creases the rights of states and lo­cal law en­force­ment to steal prop­erty from its cit­i­zens with­out due process.

He did this via Ex­ec­u­tive Order 3946-2017, in which he di­rected that “fed­eral for­fei­ture of prop­erty seized law­fully by state and lo­cal law en­force­ment is au­tho­rized when­ever the con­duct giv­ing rise to the seizure is in vi­o­la­tion of fed­eral law.”

It may sound sim­ple enough, but the reper­cus­sions of this new order are chill­ing. They also vir­tu­ally re­verse a pol­icy set by for­mer pres­i­dent Obama’s at­tor­ney gen­eral, Eric Holder, which banned the Fed­eral Civil As­set For­fei­ture Pol­icy that Ses­sions has re­in­stated. Those were Ex­ec­u­tive Or­ders pre­vi­ously put in place: on Jan­uary 16, 2015, and on Jan­uary 12, 2015, re­spec­tively.

With Ses­sions’ new order in place, the gov­ern­ment is back on track to be­gin seiz­ing bil­lions of dol­lars of goods an­nu­ally, with state and lo­cal agen­cies as its strong part­ners in crime.

Civil for­fei­ture it­self has been a long-stand­ing ap­proach through­out the United States. It al­lows law en­force­ment of­fi­cials to seize prop­erty held by al­leged crim­i­nals. This prop­erty could be in the form of items like stolen prop­erty kept by al­leged bur­glars and would be held in the­ory with the in­tent that it will be re­turned to those it was taken from. It could in­clude cash and drugs di­rectly tied to il­le­gal nar­cotics or other trafficking.

But it could also have noth­ing to do with any of that and only in­volve prop­erty seized falsely, al­leg­ing that a crime might have taken place. It also can and does hap­pen, mostly, with min­i­mal or no due process of the law.

Many peo­ple are fa­mil­iar with what is known as “crim­i­nal for­fei­ture,” in which prop­erty is taken from a crim­i­nal in con­nec­tion with an ac­tual crim­i­nal con­vic­tion of the in­di­vid­ual in­volved. Bank ac­counts or prop­erty can be seized if the owner of those bank

ac­counts or prop­erty is con­victed of a crime. In crim­i­nal for­fei­ture, the crim­i­nal or crim­i­nals are the ones on trial, with rights to a jury trial, due process and more as guar­an­teed by the U.S. con­sti­tu­tion and a col­lec­tion of fed­eral and state laws.

Things are very dif­fer­ent when it comes to the con­cept of civil for­fei­ture. In what is likely an ef­fort to skirt the con­sti­tu­tion, law en­force­ment claims it is tak­ing this ac­tion not against peo­ple but ac­tual inan­i­mate ob­jects al­leged to be some­how con­nected with the par­tic­i­pa­tion of a crime. Those items can be seized un­der civil for­fei­ture re­gard­less of whether the owner of the prop­erty is ei­ther guilty or in­no­cent and with­out the need to even charge the owner with a crime. Legally, civil for­fei­ture cases are what are called “in rem pro­ceed­ings,” which trans­lates lit­er­ally as “against a thing.” In ef­fect, the prop­erty it­self is what is charged with a crime, with cases like “State of Texas v. One 2004 Chevro­let Sil­ver­ado” or “United States v. One Solid Gold Ob­ject in Form of a Rooster” be­ing ex­am­ples of the types of cases that are filed.

This line of think­ing is, of course, en­tirely in­sane. A pile of cash or ve­hi­cle can’t com­mit a crime. They are not con­scious and can’t make de­ci­sions. They do not move on their own.

With civil for­fei­ture, the prop­erty is of­ten seized be­fore the cases are even filed. With the cases be­ing against the prop­erty it­self, rather than peo­ple, the own­ers of the prop­erty gen­er­ally do not have the rights they would in a crim­i­nal ac­tion. There is no right to have a lawyer deal with the sit­u­a­tion, for ex­am­ple. Even the con­cept of “in­no­cent un­til proven guilty” of­ten does not ap­ply, al­low­ing le­gal au­thor­i­ties to seize as­sets and force those want­ing to recover those as­sets to spend con­sid­er­able money and time to prove the as­sets are “in­no­cent” and un­con­nected to a crime – and to get them back.

The stated jus­ti­fi­ca­tion for this kind of for­fei­ture was re­in­forced re­cently by Ses­sions when he spoke with law en­force­ment of­fi­cials at a meet­ing in mid-july 2017, where he said, “As any of th­ese law en­force­ment part­ners will tell you and as Pres­i­dent Trump knows well, civil as­set for­fei­ture is a key tool that helps law en­force­ment de­fund or­ga­nized crime, take back ill­got­ten gains and pre­vent new crimes from be­ing com­mit­ted and it weak­ens the crim­i­nals and the car­tels.” He went on to jus­tify the value of the con­cept fur­ther by say­ing that “even more im­por­tantly, it helps re­turn prop­erty to the vic­tims of crime.”

If all (or any) of that were true, this change in pol­icy might be a good thing. Civil for­fei­ture is, based on many sur­veys, some­thing most Amer­i­cans feel should be used rarely and with the laws pro­tect­ing the own­ers’ rights sig­nif­i­cantly up­graded. They feel this so strongly that many states have made civil for­fei­ture much more dif­fi­cult to do with­out more in the way of ev­i­dence, ap­provals for the seizure, no­ti­fi­ca­tion to own­ers and due process. Part of why th­ese state re­forms have been im­ple­mented is that the for­fei­ture it­self was be­com­ing so com­mon that it was a ma­jor way to in­crease the rev­enues and bud­gets of lo­cal and state au­thor­i­ties with­out their hav­ing to di­rectly hit up tax­pay­ers for more di­rect fund­ing.

As just one ex­am­ple of what can hap­pen with­out such con­trols in place, take the case of Utah. In 2016, the po­lice in that state seized a to­tal of $1.4 mil­lion in cash from peo­ple in civil as­set for­fei­ture cases. Fed­eral law en­force­ment peo­ple also op­er­at­ing in the state seized an ad­di­tional $1.3 mil­lion in for­feited as­sets, with some of that coming back to the states. And a study of the 400 cases eval­u­ated by in­de­pen­dent third par­ties look­ing at the Utah sit­u­a­tion re­vealed that in most of the cases peo­ple did not step in to fight the seizures.

As fur­ther ex­am­ples, an anal­y­sis by the In­sti­tute for Jus­tice of the pe­riod from 2002 to 2013 showed that to­tal civil as­set for­fei­tures for just 14 states (Ari­zona, Cal­i­for­nia, Hawaii, Louisiana, Mas­sachusetts, Michi­gan, Min­nesota, Mis­souri, New York, Ok­la­homa, Penn­syl­va­nia, Texas, Vir­ginia and Wash­ing­ton) – states se­lected be­cause it was rel­a­tively straight­for­ward to look up their records – amounted to over $250 mil­lion just in 2013 alone. In 2012, Texas had the high­est dol­lar fig­ure of th­ese to­tals, with $46 mil­lion ac­cu­mu­lated from such seizures. In sec­ond place was Ari­zona, with $43 mil­lion, and Illi­nois came in third, with $20 mil­lion.

Also of note is that, based on com­par­isons of the In­sti­tute for Jus­tice data for the value of the seized civil as­sets to law en­force­ment bud­gets, it turns out those for­feited as­set to­tal rev­enues were cal­cu­lated to be an av­er­age of 14% of the state and lo­cal law en­force­ment bud­gets across the United States. With that large a de­pen­dence on those for­feited as­sets, it’s no won­der state and lo­cal of­fi­cials might be fight­ing to hang on to what they have re­ceived.

And at the fed­eral gov­ern­ment level, the to­tals are even more amaz­ing. As of 2014, the an­nual de­posits to the fed­eral gov­ern­ment’s de­pos­i­to­ries coming from civil for­fei­ture amounted to $4.5 bil­lion. Records also show that from 2001 through 2014, the Depart­ment of Jus­tice and the U.S. Trea­sury de­liv­ered $29 bil­lion in to­tal civil for­fei­ture rev­enues to the U.S. gov­ern­ment.

The num­bers were not al­ways this high for civil

for­fei­tures in the past, and it does not ap­pear that the feds are thwart­ing more crime but sim­ply steal­ing more.

In the United States, the first laws that al­lowed for fed­eral civil for­fei­ture ap­plied solely to the col­lec­tion of cus­toms du­ties. Since the United States was founded very much on “anti-tax” poli­cies and stayed that way for some time, and the U.S. Fed­eral In­come Tax did not even come into be­ing un­til Fe­bru­ary 1913, with the pas­sage of the 16th Amend­ment, cus­toms du­ties and at­tempts to get around them were for a long time the ma­jor source of in­come for the fed­eral gov­ern­ment. Even then, court cases chal­leng­ing civil for­fei­ture were highly pro­tec­tive of the peo­ple and their as­sets. The U.S. Supreme Court did de­fend the idea of civil for­fei­ture – but mostly to deal with in­ter­na­tional le­gal is­sues of ad­mi­ralty, piracy and di­rect cus­toms en­force­ment.

Things stayed this way for a long time in the United States, with civil for­fei­ture for any other sort of issue mostly blocked by statute, prac­tice or both. The only ma­jor ex­cep­tion to this hap­pened dur­ing Pro­hi­bi­tion, when cars, trucks and trains car­ry­ing il­le­gal liquor were seized, along with the banned goods.

That ex­cep­tion may have in its own way led to the change in le­gal prac­tices in­volv­ing civil for­fei­ture, which be­gan chang­ing dra­mat­i­cally in the early 1980s as part of the war on drugs. The big­gest sin­gle step change that hap­pened back then was in 1984, when the U.S. Con­gress amended the 1970 Com­pre­hen­sive Drug Abuse and Pre­ven­tion Act to cre­ate the As­sets For­fei­ture Fund. Shortly af­ter that, the sec­ond-big­gest change hap­pened in the poli­cies, when fed­eral agen­cies were granted the right to re­tain and spend the pro­ceeds of for­fei­ture. That had the dis­as­trous side ef­fect of giv­ing law en­force­ment a di­rect fi­nan­cial incentive to seize civil as­sets.

Once that last change was in place, civil for­fei­ture took off as a stan­dard prac­tice of op­er­a­tion for lo­cal, state and fed­eral au­thor­i­ties. In 1986, two years af­ter the As­sets For­fei­ture Fund was cre­ated, the Depart­ment of Jus­tice took in “only” $93 mil­lion from seized civil as­sets. By 2008, 22 years later, the fund had ac­cu­mu­lated $1 bil­lion in “net as­sets,” af­ter ex­penses for debt obli­ga­tions and other ex­penses had been sub­tracted out. This was turn­ing out to be a big crim­i­nal en­ter­prise, this time with the nor­mal roles of sus­pected crim­i­nals and the law en­force­ment “good guys” re­versed, as law en­force­ment took on the role of thief and those they stole from were in many cases in­no­cent by­standers.

Some ar­gue that some of the ac­cu­mu­la­tion of rev­enues from seized as­sets may be just “good polic­ing.” But when one notes that many state and lo­cal au­thor­i­ties at­tempt to op­er­ate with seizures that ac­cu­mu­late to no more than $1,000 per case, the cost of fight­ing such cases is of­ten pro­hib­i­tive for al­most any­one to chal­lenge. The cost of an at­tor­ney alone would be much more than what might be re­trieved in such sit­u­a­tions, so many peo­ple give up af­ter they learn of the few op­tions they have.

As par­tial pro­tec­tion for th­ese peo­ple, who could not eas­ily af­ford to fight for what might right­fully be theirs, for­mer at­tor­ney gen­eral Holder’s past or­ders were put in place in 2015 to get rid of a con­cept called “fed­eral adop­tion” of civil for­fei­tures. Prior to Holder’s rules, it was pos­si­ble for the fed­eral gov­ern­ment to “adopt” state and lo­cal of­fi­cial civil for­fei­ture items, pro­vided the al­leged crimes un­der which the items had been seized were also vi­o­la­tions of fed­eral statutes. The con­cept in­volved was that, even though state and lo­cal laws might have been more re­stric­tive on civil for­fei­tures than for the same seizures by the feds, one way to get around the lo­cal re­stric­tions was to al­low the state and lo­cal law en­force­ment peo­ple to turn over their prop­er­ties to the feds. The laws in that case al­lowed for a sort of “rev­enue shar­ing” so that the states gen­er­ally re­ceived back 80% of the value of what­ever had been “kicked up­stairs” for sale of the for­feited prop­erty. With Holder’s Ex­ec­u­tive Or­ders in place, that fed­eral adop­tion prac­tice was abol­ished, for the most part, ef­fec­tively ced­ing power to the states to as­sert their own tougher civil for­fei­ture rules.

Some of those states have stepped up with stronger laws in­volv­ing civil for­fei­ture than they used to have in the past.

In Cal­i­for­nia, for ex­am­ple, the state has long had a law in place that re­quires a crim­i­nal con­vic­tion be­fore real es­tate, ve­hi­cles, cash or boats worth less than $25,000 can be for­feited to the gov­ern­ment. If more

than $25,000 in cash was on the line, the gov­ern­ment had to pro­vide con­vinc­ing ev­i­dence that a crime had been com­mit­ted. Also, if an in­no­cent per­son who owns prop­erty seized wanted to pull back that prop­erty, the bur­den in that state re­quired the gov­ern­ment to prove the owner knew about the il­le­gal use of the prop­erty.

The prob­lem with all those parts of past Cal­i­for­nia law was that the “fed­eral adop­tion” rules could over­ride them un­der that “eq­ui­table shar­ing” pro­gram de­scribed ear­lier – which is why a 2014 in­ves­ti­ga­tion by The Wash­ing­ton Post was able to find around 10,000 civil cash for­fei­tures in Cal­i­for­nia gained as a re­sult of ac­tions con­ducted “with­out search war­rants or in­dict­ments through the eq­ui­table shar­ing pro­gram” since 9/11.

Un­der Cal­i­for­nia SB 443, how­ever, which was passed by the state leg­is­la­ture and signed into law in the fall of 2016, law en­force­ment agen­cies will be re­quired to ob­tain a crim­i­nal con­vic­tion be­fore they are en­ti­tled to any eq­ui­table shar­ing pay­ments from for­feited real es­tate, boats, cars and trucks and cash for seizures un­der $40,000. This new reg­u­la­tion does not block the seizures where fed­eral adop­tion is in place, but it does block the state and lo­cal law en­force­ment of­fi­cials by not al­low­ing them to bring in the pro­ceeds from fed­eral adop­tion un­less they have a crim­i­nal con­vic­tion.

In the state of Mis­sis­sippi, in March 2017, House Bill 812 was signed into law as a ma­jor re­form. It re­quires the state’s Bu­reau of Nar­cotics to main­tain a pub­lic web­site track­ing for­fei­tures taken through civil court pro­ceed­ings. It even goes so far as to re­quire a judge to ap­prove a seizure war­rant within 72 hours of a po­lice agency seiz­ing prop­erty.

Prior to both those states’ ac­tions was New Mex­ico putting in place what could be a model for many states to fol­low with re­spect to such re­forms. In laws en­acted in 2015, New Mex­ico made it a re­quire­ment that prop­erty can­not be for­feited with­out the gov­ern­ment first hav­ing the prop­erty’s owner con­victed of a crime and with there be­ing a clear tie of the prop­erty in­volved to the crime. Sec­ond, in that state, be­fore items can be for­feited, the gov­ern­ment must prove a per­son had con­vinc­ing ev­i­dence of the crime that would al­low the for­fei­ture to go for­ward. Most pow­er­ful of all, even when a civil for­fei­ture does go through, 100% of the monies earned from it must go into New Mex­ico’s gen­eral fund, with ex­plicit block­ing of the fed­eral adop­tion clause and none of the seized as­sets able to be re­turned to the state and lo­cal law en­force­ment agen­cies. This last part should at least min­i­mize the profit incentive for those law en­force­ment groups. With his new Ex­ec­u­tive Order al­low­ing fed­eral adop­tion of state and lo­cal seized as­sets, Ses­sions will likely still want to have a say in the le­gal­ity of the best of th­ese laws. It is even pos­si­ble that he will ask his team to pur­sue le­gal ac­tion against New Mex­ico, Cal­i­for­nia, Mis­sis­sippi and oth­ers as he at­tempts to wrest con­trol of those ornery states who refuse to fol­low his ap­proach to for­fei­ture. The one thing that is cer­tain is Ses­sions is un­likely to rest un­til he has de­stroyed what lit­tle democ­racy re­mains and has all the states in full lock­step to sup­port his own goal of steal­ing the as­sets of in­no­cents swept up in his web of fed­eral thiev­ery.

If Amer­i­cans con­tinue to tol­er­ate this type of crim­i­nal­ity by gov­ern­ment, they can only ex­pect their rights to be fur­ther eroded and gov­ern­ment to be­come even more preda­tory.

Photo by Johnny Sil­ver­cloud, CC

Photo by dal­lascrim­i­nalat­tor­ney, CC

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