He hasn’t yet sent federal agents into the ever-growing number of states that legalize medical and recreational marijuana, but Attorney General Jeff Sessions is becoming the kind of law enforcement officer that criminal justice reformers feared he would be from the start.
On Wednesday, Sessions declared that civil asset forfeiture was back. It didn’t go anywhere, mind you. The controversial process in which police can not only seize property like cars and cash they suspect are connected to a crime, but profit from it too, was gently restricted at the federal level by former-Obama Attorney General Eric Holder. Now, under Sessions, no matter what state law says, “Under the Attorney General’s Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law.”
Sessions claims that law enforcement is going to prioritize assets associated with violent drug crimes, but there is no reason why police won’t just go back to using the Drug War to buy their departments new toys, as they’ve been doing for the past 30 years.
A decade ago, only a handful of astute people realized that this confusing-sounding policy was a scam. Today that knowledge has spread, helped along by fun facts, like more money was taken through asset forfeiture in 2014 than burglary (some $5 billion total). Those startling numbers, along with the desire to see police cleaned up in general, has made forfeiture reform popular indeed, with 84 percent of Americans now saying they want to see the practice ended altogether.
It was Holder who put up a few tepid safeguards, and restricted (some) aspects of the federal money-pot called “equitable sharing.” This happened because of a gradual movement towards justice reform on both sides of the aisle over the past 10 years.
Until Sessions put the brakes on Wednesday.
Sessions told law enforcement officials that asset forfeiture is “a key tool.” He detailed how wonderful and vital it is because, in part, it “helps return property to the victims of crime.” Does it? Since when is the U.S. justice system more about restitution than punishment?
No, hang on, Sessions continued, “Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement….” Well, that sounds a little better. But the core objection that most people have is not that money from criminals is transferred to police. The fundamental problem is taking money and property from people who have not yet been convicted of a crime, or even charged in some cases.
Forfeiture, a Prohibition-era tool, came back with zeal during President Reagan’s increasingly militarized War on Drugs. It is both a federal and a state matter. The ease with which property can be taken varies from state to state, though most of them (except the half dozen states such as New Mexico and Missouri which don’t let law enforcement keep any assets) are overly lax. Unfortunately, however, the DOJ equitable sharing program, which is a legal slush fund, can effectively ruin any state safeguards. Basically, it means that if there is even a tentative federal involvement in an investigation, the state agency can keep 80 percent of the profits, and the feds get 20 percent.
In his statement, Sessions defended the process. He used the fact that “four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court,” as proof that the system is working well. The fact that it costs money to take someone (not just someone, the federal government) to court to prove that your money is your money takes time and effort.
Yes, a drug dealer might be carrying $15,000 in cash. So might an antiques-buyer, a car-buyer, a horse trader, a would-be business owner, or lots of other people who shouldn’t have to go to court to get their money back. Sessions says that law enforcement will be careful and that innocent bystanders won’t become victims. These vague safeguards feel more like a PR move to counter bad press in which cops tried to take homes where an adult child dealt a small amount of drugs, or a motel owner fought for years to keep his property, or a hundred other stories of people with cash being screwed over.
None of his assurances has any weight beyond “trust us.” It’s reassurance and regression, not reform.
This regression is proof that the federal government is the weight dragging at the legs of states that want to reform criminal justice. The only way to answer Sessions’ unleashing of law enforcement is to abolish civil forfeiture in every state. That way, the federal government would lose its treasure chest of resources, and state and local law enforcement would have to go after real, provable criminal activities instead.
Lucy Steigerwald is a journalist and an editor at Young Voices. Follow her on Twitter: @lucystag