Editorial: Asset forfeiture rule changes leave problems

The Orange County Register
Guest Editorial


In an unfortunate turn, the U.S. Department of Justice has decided to lighten up on rules restricting law enforcement’s use of asset forfeiture.

Although Attorney General Jeff Sessions will include some helpful modifications to the stricter new policy, the net result is still a setback for Americans — not only the criminals federal prosecutors and cops want to keep off the streets.

Not only is asset forfeiture inherently ripe for abuse that can be too consuming to monitor and too painful for those targeted to reverse. The purpose of the abuse is often more to line pockets than it is to take away ill-gotten gains.

This week’s changes are part of a plan to walk back constraints on asset forfeiture imposed by then-Attorney General Eric Holder in the face of a growing outcry from citizens, as well as policymakers.

Civil liberties groups spearheaded a campaign against the way standing law had allowed policing to become akin to a for-profit operation. Criminal asset forfeiture laws not only allowed police to seize property and cash belonging to those merely suspected of criminal activity, but allowed police to keep it. Worse, civil asset forfeiture laws allowed permanent seizures to extend to people not even charged with crimes.

The result was, at the bottom end of the scale, “small” seizures of cash that had a grievous impact on individuals, and, at the top end, outsized windfalls for departments on the make.

The Obama administration’s move to address that criticism by curtailing asset forfeiture cooled tempers to a degree, but the fundamental issue did not go away.

Now it is back in earnest — although reports now indicate that the Justice Department under Sessions intends to ameliorate the impact of asset forfeiture excesses by issuing stricter requirements about how and when federal law applies. Law enforcement will now need the approval of a federal prosecutor in order to seize less than $10,000 in cash without a warrant, an arrest, a confession or the possession of contraband. Previously, the bar for such seizures was $5,000, and prosecutors infrequently entered into the process.

Authorities will be obliged to update people on the status of their seized property faster than the law currently mandates. And police will have to supply more robust accounts of probable cause in order to pass muster on asset seizures.

But trouble remains. The new and improved deadline for informing property owners of what has become of their belongings, for example, is now 45 days, which is still an eternity for people whose savings or whose automobiles have been taken away without charge. Targets of seizures will still bear the burden of persuading police that their property was not related in any way to a crime — without the benefit of a right to legal counsel. The list goes on.

While Attorney General Sessions has a strong and reasonable interest in enforcing standing laws against major drug traffickers, asset forfeiture turns on a legal principle — criminals should lose at least some property rights — that puts officials on a slippery slope they’re incentivized to slide down.

It’s too difficult to clearly delineate genuine traffickers from possible couriers under those circumstances, and when officials make even well-meaning mistakes, people pay dearly, with slim hopes of recovery.

Frustrating as it may be, the fight against excessive asset forfeiture practices must and should go on.

— The Orange County Register, July 19