By Jim Sensenbrenner

?Published on February 10, 2015


It's hard to believe this can happen in America. The government is seizing billions of dollars of cash and property from Americans, often without charging them with a crime. Worse, the law enforcement agencies that seize the cash are usually entitled to keep it.

If these individuals were found guilty of crimes and this money was its fruit, my only response would be applause. But forfeitures need not be predicated on crimes.

Recent reports highlighted the story of Mandrel Stuart, who was pulled over because he had tinted windows and a TV in his line-of-sight. Stuart owned a barbecue joint — the Smoking Roosters — and was carrying cash for supplies. Police seized $17,550 in cash, but never filed charges.

After a lengthy process, Stuart's money was returned, and a court ordered the government to pay his $11,825.40 in legal fees. And while this is the exception, not the rule, it still came at a cost. Stuart lost his business, and taxpayers footed the bill.

With origins in medieval law, civil asset forfeiture is premised on the legal fiction that inanimate objects bear moral culpability when used for wrongdoing. The practice regained prominence as a weapon in the modern drug wars as law enforcement sought to disrupt criminal organizations by seizing the cash that sustains them. It has, however, proven a greater affront to civil rights than it has a weapon against crime.

Our justice system makes it too easy for law enforcement to seize and ultimately forfeit property and too hard for innocent owners to get it back. And it gives law enforcement a direct financial incentive to exploit these weak procedures.

Last month, Sens. Charles Grassley (R-Iowa) and Mike Lee (R-Utah) and U.S. Rep. John Conyers Jr. (D-Mich.) and I sent a letter to Attorney General Eric Holder to express our "concerns that the government is not using the process fairly and instead is infringing on the rights of small business owners and motorists," and that "seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities." We encouraged the attorney general "to consider discontinuing 'adoptive seizures' and 'equitable sharing'" and "implement additional procedural safeguards."

In response, Holder took an important first step, and suspended federal adoption of state and local seizures. Federal adoption allowed police to ignore restrictions in state law by working with the federal government. Under the equitable sharing program, DOJ returned up to 80% of forfeited money to the state agencies. A 2011 study found that police were, in fact, more likely to rely on federal equitable sharing in states where the law made forfeitures more difficult or less rewarding.

While the announcement by Holder is commendable, there are notable loopholes.

The new policy does not apply to joint task forces, which could exempt a large number of seizures.

It also doesn't curtail "seizures pursuant to federal seizure warrants," so law enforcement can avoid the policy by convincing a judge to issue a seizure warrant. The policy is therefore only as robust as the judges who review the seizures demand.

DOJ's new policy will result in fewer unfair forfeitures. How many fewer? We'll have to wait and see, but the problem is far from solved. Congress must enact permanent, comprehensive forfeiture reform to protect property rights.

The Founders understood the virtues of limited government. The right to own property is enshrined in the Fifth Amendment to the Constitution: "(No person shall) be deprived of life, liberty or property without due process of law."

Current forfeiture provisions mock the spirit and meaning of that passage and create serious issues under several other Constitutional provisions. It's no wonder my former colleague Henry Hyde described civil asset forfeiture as an "unrelenting government assault on property rights, fueled by a dangerous and emotional vigilante mentality that sanctions shredding the U.S. Constitution into meaningless confetti."

Hyde led an effort that culminated in passage of the Civil Asset Forfeiture Reform Act. It was a noble effort, but it plainly fell short. In advancing CAFRA, Hyde noted that in 1993 the Department of Justice forfeited $556 million and U.S. customs had seized property valued in excess of $611 million. Post-CAFRA, in 2012, DOJ alone seized $4 billion.

Forfeiture's only defenders seem to be its beneficiaries — law enforcement agencies entitled to keep the proceeds of their seizures — a conflict of interest so stark it takes us to another age. Adequate forfeiture reform is long overdue.

To be clear, the failure is not on our police who bravely enforce the laws we write. Congress has failed to craft adequate laws, and DOJ has failed to implement policies that fully protect Constitutional rights.

As a former chairman of the House Judiciary Committee, I am fully aware of how broken our criminal justice system is. I spent the last year leading a task force on over-criminalization. Our jails are over-crowded, our criminal code is convoluted and federal regulations are outdated and cumbersome. I intend to introduce a package of legislation to address these and other concerns. Reforming our forfeiture laws will be a chief priority.

The Crime, Terrorism, Homeland Security and Investigations Subcommittee, which I chair, is holding its first hearing on asset forfeiture this week to determine what reforms will best prevent abuse.

I have no illusions about how difficult a fight this will be, but our Constitutional rights are worth fighting for.