Jeff Sessions Ignorantly Thinks Civil Forfeiture Is Just Fine

Following up on my prior post about the creative use of “booking fees” that police and municipalities and even banks use to profit from simply an arrest, regardless of whether the charges are dropped or the person arrested is actually acquitted of the crime, the Washington Post had an opinion piece on Friday that highlighted the incredible abuse of civil forfeiture. The story focuses on a family in Pennsylvania whose son was arrested for selling drugs at a location that was not their house. But that didn’t stop the city of Philadelphia from trying to seize the $350,000 home that they owned outright. The family felt the full weight of the Kafka-esque process of civil forfeiture. The property can be seized on merely the suspicion that it was involved in a crime. The owners have the burden of proving that it was not. Prosecutors advised the family that they did not need a lawyer during the process, a pretty egregious oversight considering they were at risk of losing their house. Prosecutors also proposed “deals” that bear a resemblance to extortion by suggesting that the owners could sell the house and split the proceeds with the government. If the owners missed a hearing, forfeiture could be declared instantaneously in their absence. Thankfully, the Institute for Justice came to the family’s defense and saved their house from forfeiture.

Civil forfeiture continues to be an abusive and seemingly unconstitutional process that has nevertheless been accepted as a valid practice by government and, incredibly, the courts. And the new administration is not likely to do anything to stop this practice and may even expand it. Jeff Session, the nominee for Attorney General, made his feelings about civil forfeiture clear during Senate Judiciary hearings in 2015. According to Sessions, “[T]aking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.”  Sessions continued by saying that it should be as easy for “government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit” and government “should not have a burden of proof higher than in a normal civil case.” Of course, there is no “judicial process”. Property can be seized even if the owners have not been charged with a crime and based only on a suspicion, rather than any determination from a court. In a normal civil case, the burden of proof lies with the government; in forfeiture it lies with the defendant. Sessions continued to display his ignorance by adding his belief that “95 percent” of civil forfeiture case involve nothing more than people who have “done nothing in their lives but sell dope.” That would be news to the family in Philadelphia who probably worked quite hard to get to a place where they owned their house outright. But ignorance is considered a requirement to become a Trump cabinet member.

It’s ironic that Sessions used the example of business in civil suits as the reality is that businesses and their owners have far more rights than those who have been charged with civil forfeiture. In fact, they have far more rights that many Americans when it comes to ignoring the law with impunity and getting away with it – just take a look at Uber. The granting of constitutional protections in the form of corporate personhood that began in the late 1800s had led to a situations where corporations enjoy many, if not arguably more rights, than individuals while bearing none of the responsibilities that come with citizenship.  And it has added to the incredible erosion of our democracy.