Former DOJ Official: Civil Asset Forfeiture Is Dangerous

REUTERS/Brian Snyder

Brad Cates Former Director of DOJ Asset Fortfeiture Office
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Imagine a classic luxury resort club in Florida where a wedding reception attended by hundreds of Hollywood A-listers is taking place. Imagine the hotel staff witnessing guests partaking in leisurely drug use – and whatever else they do at weddings – and taking no action. Now imagine the shock when the owner of said club finds out that the U.S. Drug Enforcement Administration plans to seize and forfeit his property, even though no arrests or convictions resulted!

Don’t think this is possible? Think again.

Ask Christos and Markela Sourovelis, middle class homeowners in Philadelphia, whose son was stopped on the street with $40 worth of drugs.  The Sourovelises were not arrested, yet the Sourovelises and 1248 other Philadelphia homeowners, had their homes taken for forfeiture in the years 2002-2014.

Ask single mom Arlene Harjo, whose car was seized for forfeiture in Albuquerque when her son, without permission, allegedly drove while intoxicated.  Ask the other 1000 people who lost cars in Albuquerque in the last three years, even though they were never charged nor convicted.

Ask Eh Wah, the U.S. manager for a Burmese and Thai Christian music group whose performances benefit orphanages in Burma and Thailand. Their $53,000 road money was seized by the Oklahoma Highway Patrol because they didn’t appear to be the kind of people who could have a good reason for possessing $53,000.  Again, no probable cause, no arrests, no conviction.

Civil Asset Forfeiture is an ancient English legal concept whereby the King could take your property without probable cause, without arrest, without counsel, without the right against self-incrimination, without a jury, and without a conviction. Indeed, the burden is on you to prove you did nothing wrong!

Forfeiture was abolished by the Magna Carta—but then it made a roaring comeback in recent years!

As the former Director of the U.S. Department of Justice Asset Forfeiture program, I support the use of civil asset forfeiture against international drug cartels, human traffickers, smugglers, arms dealers, and terrorists—the purposes for which the modern version of the law was written.

I strongly support President Trump as he tries to regain the trust and respect we all used to have for law enforcement, before the deliberately divisive and harmful federal policies of recent years undercut them.

But I, like 80 percent of Americans polled, do not support taking private property without an arrest and conviction. Since I helped write the unanimously passed New Mexico law that abolished civil asset forfeiture in 2015, 11 other states have also abolished or reformed their forfeiture laws. Abolition or reform is pending in 20 other state legislatures, and before the U.S. Senate Judiciary Committee. Reform is supported by think tanks across the political spectrum, from Heritage, Koch, Institute for Justice, and Right on Crime, to the ACLU and Drug Policy Alliance, from Senators Rand Paul and Charles Grassley to Ron Wyden and Martin Heinrich.

Civil forfeiture is a threat to property rights, and policing for profit needs to come to an end.  I expect that he and the President will look at that evidence, and that we will see some needed reforms forthcoming from the Trump administration on this important issue.

Brad Cates is an international business attorney in New Mexico. He was the second, and longest serving, Director of the DOJ Asset Forfeiture/ Money Laundering Office.  He has been a federal and state prosecutor, federal administrative judge, senior Assistant Attorney General, Enforcement Counsel to the Commissioner of the INS, and four term State Legislator.   He is a signatory to the Right on Crime Statement of Principles.