Attorney General Jeff Sessions has few friends in Washington these days. The left has always hated him. President Trump just told The New York Times he regretted hiring him because of his recusal in the Russian Investigation. Now, many conservatives and libertarians are attacking him over his plans to revive the civil asset forfeiture program suspended by President Obama and Eric Holder in late 2015. These critiques are misguided. Conservatives should be rallying around Sessions instead of giving ammunition to the Left, which will paint him as out of touch with the GOP mainstream.
Civil asset forfeiture involves law enforcement confiscating property used in crimes. The proceeds often help fund the agencies which confiscated the property. One of the most thorough critiques of the practice came from National Review’s David French, who called it a “gigantic law-enforcement scam” and a “constitutional atrocity.”
French complains that the government must only prove guilt by a “preponderance of the evidence” (i.e. more likely than not) to seize property. Like other critics of Sessions’ policy including the Heritage Foundation, Rand Paul, and Mike Lee, he believes this makes the asset forfeiture unconstitutional, and wants the government to prove “beyond a reasonable doubt” that the property’s owner used personally used it in a crime.
The Fifth Amendment protects citizens from being “deprived of life, liberty, or property, without due process of law” and the Fourth Amendment prohibits “unreasonable seizures.” Common sense, centuries of case law, and Anglo-Saxon common law dictate that the amount of process which is “due” depends upon whether it’s life, liberty, or property is on the line. The state must prove guilt “beyond a reasonable doubt” to deprive liberty in a criminal case. In death penalty cases, the government must overcome further procedural protections, and prove “heightened reliability” of the evidence.
The state requires the lowest standard of proof to seize property. Many administrative and civil penalties only require preponderance of the evidence. Furthermore, these penalties sometimes benefit the agency enforcing them (e.g. speeding tickets often help fund traffic courts or police departments.) While it does not keep the proceeds, the government still deprives its citizens of property when it enforces civil judgments, which are almost always decided by the preponderance standard. Thus, there is nothing unique about the due process required for civil asset forfeiture.
After noting multiple Supreme Court cases which upheld it, French baselessly claims that the Supreme Court is “running out of patience” with the supposedly unconstitutional practice because Clarence Thomas’s—by far the most libertarian Justice on the court—lone dissent on a cert petition. French further speculates that Neil Gorsuch opposes asset forfeiture because of his “skepticism of expansive executive powers and respect for originalism.” However, in a survey of his appeals court decisions, Gorsuch sided with government in every civil asset forfeiture case.
Just because a forfeiture is constitutional does not make it desirable. French points to a few isolated extreme examples such as a woman lost her car because her husband used it to solicit a prostitute. However, as Sessions pointed out in 2016, 95% of the seized property belongs to people are people who have “done nothing in their lives but sell dope.”
As the attorney general promised in his announcement on civil asset forfeiture, there is room to reform the practice to make it more fair and prevent abuse. Sessions’ record as US Senator shows he has supported some of these reforms in the past, including sponsoring the Civil Asset Forfeiture Reform Act with Chuck Schumer. However, a few unfortunate cases should not force him to end it all together. With crime and drug abuse rising, America cannot afford to deprive law enforcement of much-needed funding that would otherwise stay in the hands of drug dealers by ending an effective and constitutional practice.
Luke Schwartz is an attorney practicing appellate and regulatory law in Washington, DC.