Sessions Announces New Federal Guidelines on Controversial Asset Forfeiture Practice

Attorney General Jeff Sessions / Getty
• July 19, 2017 4:00 pm


Attorney General Jeff Sessions on Wednesday announced new guidelines for civil asset forfeiture, rolling back Obama-era limits on the controversial practice.

Sessions initially signaled the federal rules change during a speech at the annual meeting of the National District Attorneys Association on Monday.

Asset forfeiture is a policing tool that allows police to seize property without charging or convicting its owner; intended for combatting organized crime, the tool has received criticism in recent years.

Sessions' new policy revives the once seriously limited practice of "federal adoption" of forfeited assets. That practice, under the federal Equitable Sharing program, permits state and local police departments to seek asset forfeiture under federal law, rather than state laws. Under equitable sharing, the federal government retains 20 percent of asset forfeiture proceeds; the remaining 80 percent are paid back to state and federal police.

Equitable sharing may be attractive to those state and local police departments in states where forfeiture standards are more strict than federal law, or where the proceeds of asset forfeiture must be paid into a general fund, instead of being assumed by the police department. Adoption is certainly lucrative, according to an analysis by the libertarian-leaning Institute for Justice: from 2000 to 2013, the Department of Justice paid out $4.7 billion from the fund, an average of slightly more than $330 million per year.

Sessions' order makes clear that the goal of reimplementing federal adoption is not to "affect the ability of state and local agencies to pursue the forfeiture of assets pursuant to their respective state laws, but instead makes another tool available to our state and local partners."

The practice of federal adoption, and civil asset forfeiture more broadly, has faced serious opposition. Groups on the left and the right have called for asset forfeiture reform, and in May a bipartisan group of senators wrote a letter to Sessions on the issue.

Indeed, the new reimplementation of federal adoption overturns the reform-minded policy previously set by the Justice Department under former Attorney General Eric Holder, who served during the Obama administration. In January 2015, Holder's office curtailed local and state police's use of adoption, restricting its use to just a small number of property categories. The move was supported by some Republicans, including Sens. Chuck Grassley (Iowa), Mike Lee (Utah), and James Sensenbrenner (Wis.).

Concerns about civil asset forfeiture are based on the somewhat peculiar nature of the practice, which permits law enforcement to bring charges against and seize property, independent of any conviction of or even charge against its owner. In particularly egregious cases, citizens may find their property seized with little or no cause and essentially forfeit it, given the legal barriers to reclaiming it. That police departments pocket the proceeds of selling seized assets only makes the practice more problematic.

"This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses," wrote conservative Supreme Court Justice Clarence Thomas in a blistering attack on the practice earlier this year.

Sessions, however, defended the practice as a vitally important law enforcement tool for combating organized crime.

"Civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels," he said at Wednesday's announcement. "Even more importantly, it helps return property to the victims of crime."

"Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits, and better training," Sessions continued. "In departments across this country, funds that were once used to take lives are now being used to save lives."

The Department of Justice promised "safeguards" on the newly reimplemented policy, presumably in an effort to address these concerns. A memo issued concurrently with the order noted among these safeguards an increase in the amount of information that state and local departments would be required to give federal authorities prior to adoption. They will also expedite the beginning of the period in which people can contest seizures.

In addition, the department intends to place restrictions on the adoption of sums under $10,000, presumably to protect average citizens from the misuse of forfeiture.