Jeff Sessions and the Resurgence of Civil Asset Forfeiture
Amid the feuds and the policy gridlock of the Trump Administration, one faithful servant of the White House, Jefferson B. Sessions III, the Attorney General, has been busy pushing through real policy changes that have been on his mind for decades. Behind the smoke of higher-profile dramas—not least President Trump’s public criticism of Sessions, including a tweet berating him as “beleaguered”—Sessions has rewritten major criminal-justice norms in ways that diverge sharply from prevailing sentiments in America, and in much of his own party. In his first six months in office, Sessions has reversed one policy phasing out federal private prisons and another seeking to combat draconian federal-prison sentences. He’s called for an inquiry into the link between marijuana and violent crime, and compared the drug’s “life-wrecking” harms to those of heroin. And last month, falling further out of step with many Republicans’ slow retreat from the war on drugs, Sessions reclaimed one of that war’s most disquieting weapons: civil asset forfeiture.
“With care—we’ve gotta be careful—and professionalism, we plan to develop policies to increase forfeitures,” Sessions told a crowd of law-enforcement officials in Minneapolis in July, previewing a federal directive to undo the Obama Administration’s mild constraints on the practice. In theory, civil forfeiture allows law enforcement to seize cash, cars, and other goods with provable ties to crime. But it has also deprived thousands of citizens of their property without due process. Unlike criminal forfeiture, civil forfeiture doesn’t require a property owner’s conviction, and the burden of proof falls largely on the person whose goods have been seized. (I outlined the perverse incentives fuelling civil forfeiture in a year-long investigation, in 2013.) Since 2014, more than twenty states have passed civil-forfeiture reforms, with varying degrees of bite. In April, 2015, New Mexico’s Republican governor, Susana Martinez, signed into law a sweeping forfeiture-reform bill abolishing the practice in the state altogether. Connecticut, Nebraska, New Hampshire, and other states have, to different extents, followed suit.
But Sessions’s order bucks this trend. In particular, it resuscitates a practice known as “federal adoption,” which allows police and prosecutors to circumvent state restrictions on asset seizures by collaborating with federal authorities. Through this partnership, state and local authorities turn their seizures over to federal colleagues, who “adopt” them for prosecution—ultimately returning up to eighty per cent of the assets to the originating cops or prosecutors to keep. One result, often unaddressed in critiques of forfeiture, is the tacit encouragement of racial profiling and targeting of property owners of color, who remain prime targets of the practice in much of the country.
A seventy-three-year-old Amtrak retiree named Elizabeth Young understands what’s at stake in Sessions’s civil-forfeiture endorsement. In 2009, she was resting in her West Philadelphia home, recovering from a hospitalization for two blood clots in her lungs, when suddenly she felt her house begin to shake. “I really thought we’d had one of those landslides, like they have in California,” Young told me recently. “I said, ‘What in the world is happening?’ ” She poked her head out into the hallway from her second-floor bedroom, and that’s when she saw them: “a bunch of cops in fatigues,” storming her stairs in a SWAT-style raid; down below, they were ransacking rooms. The Narcotics North Division was tearing up the house in pursuit of Young’s son, whom they later alleged had sold some hundred and forty dollars’ worth of pot from the residence and from his mom’s 1997 Chevrolet. Nearly a year after the raid, Ms. Young got another round of alarming news: the Commonwealth of Pennsylvania had filed a petition to seize her house and car, by way of civil forfeiture.
Sessions’s rhetoric acknowledges the risks that civil forfeiture poses to innocent property owners like Young. “Law-abiding people whose property is used without their knowledge or without their consent should not be punished because of crimes that others have committed,” he said. His remedy is for law enforcement to “proceed with caution.” (His order proposes minor “safeguards,” such as “appropriate training” for law enforcement, and “appropriate supervisory review” of civil-forfeiture approvals.)
I’ve examined at least three hundred civil-forfeiture cases over the last five years that involved no violent crime, and which did not implicate any alleged drug kingpins or sizable players in unlawful operations. At both the state and local levels—from big cities such as Philadelphia and Washington, D.C., to small towns like Tenaha, Texas—I’ve mostly found stories of small-fry folks accused, not convicted, of nonviolent offenses. In some cases, the owner of the property wasn’t accused of any crime at all. In others, the seizures clearly targeted drivers of color who happened to have large sums of cash on hand. New policy research from think tanks across the political spectrum shores up these findings with quantitative data. Earlier this month, for instance, the conservative Nevada Policy Research Institute released a geographical analysis of how the Las Vegas Metropolitan Police Department uses civil forfeiture, finding that two-thirds of seizures were made in low-income and minority neighborhoods.
Sessions sees a different picture. “Four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court,” he said recently, implying that a lack of legal challenge is proof of guilt. But if hiring a lawyer to fight your civil-forfeiture case costs more than your property is worth, the math prevails. Unlike a criminal defendant, Young’s 1997 Chevrolet had no right to a public defender.
To Young, the lack of due process inherent in civil forfeiture represents “the tyranny of what they’re doing to poor people.” “The people who are getting things taken from them, they’re low-wage people like me, and they can’t do anything about it,” she said. When Young showed up in court to fight for her home and car, the judge tried to strike a deal, offering her house back if she gave up her car. She refused. The Chevrolet held papers from her now-deceased husband and a little box in which she’d kept his jewelry. So Young decided to fight. “That car means a lot to me,” she said.
Young did have one stroke of luck: free legal representation from Philadelphia’s well-regarded Ballard Spahr law firm, which fought her case all the way up to the state supreme court. There, this past May, she won a significant victory: her case got remanded to the trial court, with an opinion that affirmed the Constitutional principles that her legal team had sought to underscore, including the notion that seizures shouldn’t be “grossly disproportional” to the gravity of the offense.
Some seven years after her home’s seizure, Young is still waiting to get it back. Her son pled guilty to a minor marijuana crime, for which he was sentenced, ironically, to “house arrest”; one of the officers involved in the original investigation, Young points out, was later indicted on corruption charges that involved planting drugs on suspects.
“I loved that house,” Young said. “My kids grew up in there. I had a beautiful stove, from Sears.” She’d poured decades of wages into the place, where she’d planned to live out her retirement. Instead, she now rotates between crashing on her daughter’s couch in Philly (“I’m a seventy-three-year-old lady, so the couch, it’s not comfortable, you know?”), and travelling to her deceased husband’s family property in South Carolina (“so that I can lay my head down”).
Young now fears that she won’t live to see her house and car returned. Recently, she wrote a note to her daughter. “If I die,” she instructed, “you’re going to take over my legal battle.” Sessions seems equally keen to continue his own.
