Leef urges Congress to take lead on civil-asset forfeiture reform

George Leef’s latest Forbes column explains why Congress should act to rein in civil-asset forfeiture, even if that means opposition to President Trump.

Shortly after the election, I wrote that Trump should become a proponent of civil asset forfeiture and defang this vicious beast. A huge majority of the public thinks that civil asset forfeiture is wrongful, because it so indisputably is. Under civil asset forfeiture laws, people who have done nothing illegal and have not even been accused of a crime (much less convicted) have cash, cars, even real estate taken from them, based on nothing more than a law enforcement officer’s suspicion that the property might have resulted from or been involved in a crime.

Civil asset forfeiture is a glaring violation of due process of law that creates opponents across the political spectrum. …

… While it’s very disappointing to find that President Trump is inclined to automatically side with law enforcement on civil asset forfeiture, it really is not his decision to make. Laws are supposed to be made or changed by Congress, not by presidential order.

A bill that has gotten bipartisan support in Congress is the Fifth Amendment Integrity Restoration Act. The key provisions of the bill are to abolish the “equitable sharing” program, raise the standard of proof needed before federal agents can seize private property from the flimsy “preponderance of the evidence” to the more demanding “clear and convincing” standard, and to place the burden of proof on the government to show that the owner actually used the property or knowingly consented to its use by another in the commission of a crime.

Congress should pass that bill and put it on the president’s desk. Whether he signs it or not would tell the public a lot about his priorities. Does he care more about protecting innocent people against an abusive system of (to use Frederic Bastiat’s useful term) legal plunder, or about buttering up a potent special interest group?

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

Reader Comments

  • Fred Gregory

    Mitch, Trump met with the Sheriffs the other day and gave full throated support for to asset forfeiture and equitable sharing. So I doubt very much will change.

    With that, I will repeat my comments from your 1-3-17 post on this same subject:

    ” I don’t find the AG nominee’s favoring the forfeiture laws disturbing at all. The legal concept goes back to the 1600s and maritime laws. It was used during prohibition to seize bootleggers autos and money.

    Leef states :”The fact of the matter is, we have no way to know what portion of civil forfeitures involve genuine ‘criminals,’ as the whole point of civil forfeiture is that government can take property without convicting or even charging anyone with a crime.”
    I take exception based on my experience. Trust me,
    I was a DEA agent for 25 years. The last six from 1984 to 1990 when I was in charge of the Middle District of NC my office handled hundreds upon hundreds of property and currency seizures. Not one of failed to stand scrutiny . Most were administrative , that is not involving the courts unless the amount was over $500,000.00 then the US Attorney had to file civil forfeiture action is the US District Court. The administrative seizures rarely reached the court unless the person claiming an interest in the property under seizure filed a climb and cost bond .

    I recall my office seizing 1 million dollars in a Charlotte bank safe deposit box rented by a college student who was a big time marijuana trafficker . No innocence there.

    The Tweksbury, MA case cited by Leff is at best an infinitesimal aberration of the thousands upon thousands civil seizure matters that have been brought under the Comprehensive Crime Act of 1984.
    Thus far I have discussed “in rem” forfeitures ( against the property ) . There also criminal forfeitures a legal action brought as part of the criminal prosecution of a defendant. I recall using this only once against valuable real elate(adjacent to Disney World) owned by an individual who my office arrested in connection with the seizure of 1200 pounds of hashish.

    The burden of proof is greater in Criminal Forfeiture than a Civil one .
    Let me conclude by expressing full throat-ed confidence in Jeff Sessions … a helluva sight better than we have had in that position for the last 8 years !!

    Comment by Fred Gregory on January 3, 2017 at 7:32 pm

    Let me add one more thought in the form of a 1989 quote from Ronald Reagan’s attorney general Richard Thornburgh.

    “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

    So how is that not a good thing ?