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Sessions orders expansion of the government’s ability to seize suspects' property

Attorney General Jeff Sessions today announced a new Department of Justice policy regarding the federal adoption of assets seized by state or local law enforcement under state law.

The Justice Department claims the new policy strengthens the civil asset forfeiture program to better protect victims of crime and innocent property owners, while streamlining the process to more easily dismantle criminal and terrorist organizations.

The policy and guidelines were formulated after extensive consultation with the Task Force on Crime Reduction and Public Safety, as well as line Assistant United States Attorneys, career officials in the Criminal Division’s Money Laundering and Asset Recovery Section (MLARS), and career Main Justice attorneys.

Sessions' announcement drew quick condemnation from both Democrats and Republicans.

“This is a step in the wrong direction and I urge the Department of Justice to reconsider. Expanding forfeiture without increasing protections is, in my view, unconstitutional and wrong," Wisconsin Rep. Jim Sensenbrenner said in a statement.

Sen. Rand Paul (R-Ky) said he opposes “the government overstepping its boundaries by assuming a suspect’s guilt and seizing their property before they even have their day in court.”

Rep. Darrell Issa (R-CA) said Sessions’ agenda is “a troubling step backward” that would “bring back a loophole that’s become one of the most flagrantly abused provisions of this policy.”

“Criminals shouldn’t be able to keep the proceeds of their crime, but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen,” Issa said.

Supreme Court Justice Clarence Thomas also has gone on the record about asset forfeiture reform in the past.

In a March 6 filing, Thomas wrote that asset forfeiture has led to “egregious and well-chronicled abuses,” and noted that the practice frequently targets groups that are unable to financially defend themselves in drawn-out forfeiture proceedings.

In issuing this new policy, Attorney General Sessions made the following remarks to law enforcement officials:

“Good morning, and thank you all for being here. I especially want to thank our law enforcement partners like the Fraternal Order of Police, the National Sheriffs’ Association, the Major City Chiefs Association, the IACP, and so many others from all over the country who are here. Thank you for your service to this country and for keeping us all safe.

“As any of these law enforcement partners will tell you and as President Trump knows well, 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. 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. In departments across this country, funds that were once used to take lives are now being used to save lives.

“It also removes the instrumentalities of crimes, such as illegal firearms, ammunition, explosives and property associated with child pornography from criminals—preventing them from being able to use these tools in further criminal acts.

“President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that. We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet.

“At the same time, we must protect the rights of the people we serve. 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.

“Now, let me just say, in the vast majority of cases, this is not an issue. Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.

“Even so, we must take every precaution to protect the rights of claimants in that small minority of cases.

“And so today, the Department of Justice is issuing legal guidance that will clarify DOJ policy on the adoption of seized assets. It will return us to longstanding DOJ policy—and also provide additional, supplemental protections for law-abiding Americans. This will make us more effective at bankrupting organized criminals and at safeguarding the property of law-abiding Americans.

“Under today’s guidance, the federal government will not adopt seized property unless the state or local agency involved provides information demonstrating that the seizure was justified by probable cause. We will accomplish this through a new adoption form that state and local law enforcement must fill out before we will agree to adopt any property, which will include the necessary information to allow Department lawyers to carefully review and determine whether adoption is proper. Further, law enforcement agencies who wish to participate in the Department’s Equitable Sharing Program now must now provide their officers with enhanced training on asset forfeiture laws.

“The Department will adopt smaller seizures of cash—between $5,000 and $10,000—only if there exists some level of criminality or with the express concurrence of the U.S. Attorney’s office.

“When I was in the Senate, I worked with Senator Schumer to make modifications to the civil asset forfeiture program. We required probable cause for the seizure of property. And we raised the burden on the government, who has the initial burden in all of these cases, to the same preponderance of the evidence standard used in all civil cases. In addition, if the government lost the case, then the government pays attorneys’ fees. I believe those were good reforms that strengthened the program.

“Further, to better protect claimants, the Department will expedite the review of civil asset forfeiture cases. State and local law enforcement agencies requesting federal adoption must do so within 15 calendar days following the date of seizure. The adopting federal agency must then send notice to interested parties within 45 days of the date of seizure. This is twice as fast of a review as is required by statute. This streamlined process will ensure that people receive speedy resolutions of their cases, and that rightful owners will get their property back as soon as possible.

“In addition to these safeguards on federal adoptions, I am asking Department attorneys to proceed with an abundance of caution when handling all forfeitures involving vehicles and especially residences. I think that Department attorneys should think hard before they agree to forfeit these types of property, or waive any asset thresholds associated with them. Just like with cash seizures, if we operate this program in a careful and responsible way, something I believe the American people expect and deserve with a program such as this, the Department’s federal asset forfeiture program will be an effective tool, while at the same time protecting the rights of property owners.

“Finally, I am directing agencies and components adopting seized property to prioritize assets that will most effectively advance our overall goal of reducing violent crime. We need to send clear message that crime does not pay.

“This policy is effective immediately and applies to all new requests for adoption.

“With this new policy, the American people can be confident knowing that we are taking action to defund criminals and at the same time protecting the rights of law-abiding people.”

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