Striking the Right Balance on Asset Seizures
Last week Attorney General Jeff Sessions restarted the longstanding practice, suspended by the Obama administration in 2015, of allowing state authorities to use federal forfeiture procedures. Mr. Sessions also introduced important safeguards to protect innocent people.
Still, critics challenged the practice’s reinstatement, citing instances when police wrongly took property from people who turned out to be innocent. The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it.
Every day brings news of American families devastated by violence or drug use. Overdoses are a common occurrence. These tragedies are the work of criminal gangs that flood the streets with drugs and turn urban cores into combat zones. Such gangs exist for one simple reason: to make money.
Trafficking drugs, firearms and human beings is a means to their enrichment. Gang leaders get the cash but often evade prosecution by remaining distant from the provable dirty work. Taking away their money is therefore as important as seizing their contraband and putting their minions in prison.
At the same time, it’s important to protect innocent people from erroneous seizures. Mr. Sessions’s new guidelines say that state or local agencies seeking forfeiture under federal law must demonstrate probable cause within 15 days of the seizure. The sponsoring federal agency must notify the property’s owner within 45 days, so he can challenge it, including by going to court. Both of these time lines are twice as fast as required by law. And the probable-cause standard is the same one police have to meet before making an arrest or getting a search warrant.
Mr. Sessions also strengthened oversight for seizures of smaller amounts of cash—$10,000 or under—and directed greater caution and restraint in forfeiting homes and vehicles. Scrutiny of these types of seizures by Justice Department lawyers will be ratcheted up to prevent and catch any overuse or abuse.
Police generally are careful and conscientious, including with asset forfeiture, which is why wrongful seizures are the exception. Smart law-enforcement leaders also know that if the practice is abused and innocent people are hurt, they could lose access to this valuable tool.
President Trump has directed his administration to attack the violence and drug trafficking afflicting American cities and towns. Drug money and other proceeds of organized crime fuel the engine of cartel and gang violence, while corrupting foreign government officials.
It makes sense to target that money for seizure and then use it to offset the financial burden criminals impose on taxpayers. The increased scrutiny of asset forfeiture Mr. Sessions has directed will help ensure the innocent are protected—while still allowing police to turn dirty money against the criminals who illegally acquired it.
Mr. Terwilliger, a partner in the Washington office of McGuireWoods LLP, was deputy attorney general, 1991-93.
Appeared in the July 27, 2017, print edition.