What Trump Can and Can’t Do to Make Changes to Civil Forfeiture

Melissa Quinn / February 13, 2017

President Donald Trump’s comments on a procedure that allows law enforcement to seize property sparked much debate in the media and on the internet.

But for stakeholders who oppose the practice, called civil asset forfeiture, the president’s statements presented a learning experience for the country’s chief executive.

Trump’s comments came during a roundtable discussion with county sheriffs last week, where Jefferson County, Kentucky, Sheriff John Aubrey asked the president about efforts to curb law enforcement’s use of civil asset forfeiture.

The question sparked a brief discussion about the tool, which allows law enforcement to seize property and cash if they suspect it’s connected to criminal activity.

In the back-and-forth, Trump questioned why anyone would want to limit the police’s ability to take “a huge stash of drugs,” and ultimately told the sheriffs in attendance they were “encouraged” to take property through civil forfeiture.

The comments satisfied the law enforcement community, who believe that civil forfeiture is a critical tool to curb drug trafficking and money laundering.

“For over 30 years, the asset forfeiture program has allowed law enforcement to deprive criminals of both the proceeds and tools of crime,” Chuck Canterbury, national president of the Fraternal Order of Police, wrote in a December op-ed in The Daily Caller.

“The resources provided by the Equitable Sharing Program have allowed agencies to participate in joint task forces to thwart and deter serious criminal activity and terrorism, purchase equipment, provide training upgrade technology, engage their communities, and better protect their officers,” he continued. “It has been remarkably successful.”

But for civil forfeiture opponents who have been working with policymakers at the federal and state level, Trump’s comments demonstrated a “profound misunderstanding” of the issue, one that left open the door for some explanation from those who want reforms.

“We think if the president knew about the extent of forfeiture abuse across the country, his remarks would’ve been very different,” Darpana Sheth, a senior attorney at the Institute for Justice, told The Daily Signal.

The Institute for Justice, a public interest law firm, is part of a broad coalition of civil forfeiture opponents who believe the tool allows police to seize cash, cars, and property from people who are unaware of any wrongdoing and were never charged with a crime.

At the heart of the issue is the profit incentive opponents say civil forfeiture creates, since laws in half of the states and the federal government let police keep 100 percent of the proceeds from forfeited property.

And while some in law enforcement believe that efforts to reform civil forfeiture laws in the halls of Congress and in state legislatures are rooted in opposition to law enforcement, Sheth said that’s a misconception.

“Civil forfeiture warps law enforcement’s incentives and puts police officers in this untenable position of having to choose going after money rather than criminals,” she said. “They have to be revenue generators rather than fight crime. Once we have adequate reforms, it would free them to focus on fighting crime.”

Still, Trump’s comments left many unanswered questions, and the White House did not return requests for clarification on the president’s stance on the issue.

If Trump did want to put civil forfeiture “back in business,” as he told sheriffs last week, there are some changes he could make.

Movement in Congress

Each state and the federal government have different laws that dictate how local, state, and federal law enforcement agencies can seize and forfeit property using civil forfeiture.

At the federal level, there’s little Trump can do to change civil forfeiture laws without an act of Congress.

Even if lawmakers decided to move forward with reforms, the momentum is for tightening, not loosening, the statutes governing law enforcement’s ability to seize property, said Jason Snead, a policy analyst at The Heritage Foundation who has written extensively about civil forfeiture.

Last year, a bipartisan group of lawmakers in the House and Senate introduced the Due Process Act, which aimed to make it harder for law enforcement to take property from innocent Americans.

The bill stalled in Congress, but Snead said there’s still broad interest from Republicans and Democrats to pass civil forfeiture reform as part of a broader criminal justice reform package.

While President Barack Obama made criminal justice reform a priority of his administration, Trump’s comments injected uncertainty into the debate.

“We might see some movement in the upcoming Congress,” Snead told The Daily Signal. “But the question becomes, ‘What is the administration’s position and would they sign anything?’”

Aside from congressional action, the president and his Justice Department, led by Attorney General Jeff Sessions, do have latitude in the agency’s Equitable Sharing Program.

Under Equitable Sharing, local and state agencies participating in a joint investigation with the federal government can forfeit property under federal forfeiture laws, which are less stringent than those in some states.

The program also allows local and state agencies to keep up to 80 percent of the proceeds from forfeited property.

In 2015, the Justice Department, then led by Attorney General Eric Holder, made a significant change to Equitable Sharing.

The program allowed local and state law enforcement to seize property, which would then be “adopted” by federal agencies. Once the adoption occurred, the property was forfeited under federal law.

But Holder decided to implement a new policy prohibiting the federal government from “adopting” seizures, and today, local and state law enforcement agencies participating in Equitable Sharing have to be working alongside federal agencies to forfeit property under federal law.

That could all change, though, with Sessions in charge at the Justice Department, particularly if he decided to roll back Holder’s changes.

“We would be taking a step back to where we were in 2015,” Snead said.

While a senator from Alabama, Sessions opposed recent attempts to reform federal civil forfeiture laws.

And he said in the past that he was “very unhappy” with criticisms of how civil forfeiture is being used.

But Snead is holding out hope that both Sessions and Trump change their tune on the issue.

“We need to get in front of the president the actual facts on the ground, the extremely limited protections that are in place for property owners, and the fact that there is a financial incentive that can skew the policies and priorities,” he said.

Galvanized

While there is momentum for federal civil forfeiture reform coming from members of Congress, much of the action on the issue is taking place in the states.

Last year, a handful of states—including Florida, California, and Ohio—passed bills to tighten their civil forfeiture laws.

In total, 20 states and the District of Columbia have passed laws reforming civil forfeiture. In more than 12 states, the government must secure a conviction before forfeiting property.

“A lot of the power is in state legislator’s hands,” Snead said. “If they use that power wisely, they can make some dramatic steps.”

Already, state legislators in more than a dozen states like Illinois, Indiana, and Texas are considering legislation to require a criminal conviction before assets can be forfeited.

And Sheth said Trump’s comments likely provided state lawmakers with more motivation to push bills reforming state civil forfeiture laws across the finish line.

“People are galvanized by this,” she said. “These claims that you get that are unrebutted, that these are made up stories, the people who have experienced [civil forfeiture] or know about it know this clearly isn’t true. I think it sparks a kind of outrage.”