In recent years, numerous states have been passing new reforms of the long-abused civil asset forfeiture in which police agencies seize private property without any due process. At least 11 states, plus the District of Columbia, have passed new reforms. Some reforms, such as those in New Mexico and Nebraska, prohibit asset forfeiture altogether in the absence of a criminal conviction. Other states have opted for a more incremental approach, and have settled for new mandates in which law enforcement agencies must publicly report what has been seized — with the intent of identifying abuse for possible additional future reforms.
By: Ryan McMaken
This article first appeared at Mises.org
The Heritage Foundation has noted the significance of these reforms:
The fact that these reforms have been adopted within the past three years is remarkable. Only a few short years ago America’s civil forfeiture system was skewed at both the state and federal levels, seemingly invulnerable to public criticism and legal attack. Yet, with widespread support in their legislatures, states continue to enact significant forfeiture reform measures, often over the alarmist and overblown objections of police, sheriffs, and prosecutors. The message is clear: Outside the law enforcement community, support for the forfeiture status quo is remarkably thin.
From Washington, DC, you might not know there’s any perceived problem at all with asset forfeiture — a key tactic in the War on Drugs. This seems to be the case for US Attorney General Jeff Sessions who in a recent speech to the National District Attorneys Association doubled down on the practice and called for more asset forfeiture.
“[W]e plan to develop policies to increase forfeitures,” Sessions declared this month, claiming that ” No criminal should be allowed to keep the proceeds of their crime.” Of course, given that asset forfeiture is by definition a seizure of property from a person without any criminal conviction, what sessions really means is this: “no person we suspect of being a criminal should be allowed to keep the proceeds of their crime.” In other words, in the mind of Jeff Sessions, due process means nothing.
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State legislatures, fortunately, have concluded otherwise, and this should perhaps be not surprising since state legislatures are far more responsive to the voters than is Congress. The US attorney General, who is a political appointee, is even more distant from any oversight by the voters or the public. State legislators tend to live among their constituents. Many of them are only part timers. A voter can arrange to have coffee with a state legislator without being wealthy or especially powerful. Members of Congress, on the other hand, are mostly millionaires who spend most of their time hundreds — if not thousands — of miles from their constituents. To get a meeting of any consequence with a member of Congress, one must usually be either a wealthy donor or represent a powerful interest group. The federal AG, is totally out of reach of the average voter.
Thus it should surprise no one that Jeff Sessions, a wealthy out-of-touch former Senator himself, is moving in exactly the opposite direction as the state governments who are attempting to bring police powers under control.
Sessions himself has admitted he’s clueless as to what’s going on in the real world, and back in April he revealed he was “surprised [the public]didn’t like” his fanatical anti-marijuana policies.
Sessions won’t let his obvious disconnect from state government and the public affect his obsession with the drug war, however. He wants more asset forfeiture, and he wants more drug prosecutions.
Perhaps because of the initial reaction to his tone-deaf proclamations on marijuana, Sessions was careful to not mention marijuana in his remarks. Instead, he announced he wants law enforcement to “make visits to physician and pharmacies and do checks on those who prescribe or sell” prescription drugs because “This nation is prescribing and consuming far too many painkillers” and Sessions apparently knows exactly the correct number of prescriptions that ought to be issued.
Of course, if Sessions has decided to abandon his drive to crack down on marijuana — at least as far as his public remarks are concerned — we shouldn’t be thanking anyone in Washington, DC.
Indeed, if DC’s hands are increasingly tied on this matter it’s because the states have simply become increasingly hostile to federal policy.
Since 2012, eight US states — with a total population of over 60 million — have legalized recreational marijuana. More than a dozen other states have decriminalized marijuana. More than half of the states have legalized medicinal marijuana. Congress has done precious little to meet the states halfway on this, and legal marijuana businesses continue to be crippled by federal banking regulations, while the threat of federal prosecution still hangs over the heads of many. The federal government has not formally admitted defeat on this matter in any way and continues to reserve for itself the right to raid private homes and businesses to enforce federal law.
In the matter of both asset forfeiture and marijuana’s legality, we see a growing gap between the states and the immovable monolith that is the US federal government. As many state governments are increasingly forced to economize, reform, and engage in self-criticism over sacred cows like asset forfeiture, it’s all just business as usual in Washington where federal budgets grow ever larger, where salaries get ever bigger, and where no regulation — no matter how onerous — seems to ever be repealed.
And state hostility to federal edicts doesn’t end with just drug war matters. In recent years, at least eight states have passed laws attempting to nullify federal efforts to restrict gun ownership. As with marijuana laws, many of these provisions are facing attacks in federal court. Sessions, of course, has declared “I want to see a substantial increase in gun crime prosecutions.” He means federal prosecutions.
Meanwhile, California keeps talking about secession. Cities threaten to become “sanctuary” cities for immigrants contrary to federal law, and Utah is trying to regain control of federal lands.
Jeff Sessions, however, continues to whistle past the graveyard on these matters. In this, he’s probably a fairly typical Washington politician. From their luxury condos on the shores of the Potomac, everything probably looks fine.
This article first appeared at Mises.org