The Subcommittee on Crime, Terrorism, Homeland Security and Investigations today held a hearing on “Civil Asset Forfeiture.” Subcommittee Chairman Jim Sensenbrenner (R-Wis.) provided the following opening statement:

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.

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 war as law enforcement sought to disrupt criminal organizations by seizing the cash that sustains them. The practice, however, has proven a far greater affront to civil rights than it has a weapon against crime. 

While forfeitures have received increased attention in recent months, they are still poorly understood.  During her recent confirmation hearing, Loretta Lynch, President Obama’s nominee to replace Eric Holder as Attorney General, testified that civil asset forfeiture is “done pursuant to supervision by a court, it is done pursuant to a court order, and I believe the protections are there.”

As a United States Attorney, Lynch was known for her aggressive use of forfeiture provisions.  She was, however, wrong when she testified that forfeiture is “done pursuant to supervision by a court,” and wrong again when she said it was “done pursuant to a court order.”  One wonders if she would still believe the protections were “there” if she properly understood how they worked.

After property is seized, its owner will usually have the option of challenging the seizure judicially, with the federal court system, or administratively, with the seizing agency itself.  Seizures that are not challenged within 30 days of receiving notice are automatically forfeited. A majority of federal civil forfeitures are never contested, largely because of the high cost of retaining counsel, which often exceeds the value of the property itself.

Because of the expense and complexity of the federal court system and the short timeframe, most owners who contest forfeitures do so administratively.  Thus, contrary to Ms. Lynch’s testimony, only a small percentage of federal civil forfeitures have any involvement or supervision of a court or judge. 

I look forward to hearing from our witnesses today about whether these administrative processes provide property owners with sufficient protections.

Better-documented has been the Justice Department’s use of adoption, which occurs when a federal agency adopts a seizure from state or local law enforcement and proceeds with federal forfeiture. Under the equitable sharing program, DOJ returns up to 80 percent of forfeited money to the state agencies. 

Federal adoption allows police to ignore restrictions in state law by working with the federal government.  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. This presents a profound federalism problem and opens law enforcement agencies to allegations that they are policing for profit.
After 5 O’clock last night—at the last minute before today's hearing—DOJ sent new guidance on the revised adoption policies it issued last month. I look forward to learning more about the impact of these revised adoption guidelines. 

Just last month we learned that the DEA, through their cold consent searches, may have improperly searched citizens’ belongings at transportation hubs throughout the country.  During these searches, DEA seized cash based merely on the suspicion that a large quantity of cash was indicative of illegal activity.

To make matters worse, according to the DOJ Inspector General, DEA did not always provide adequate information to those who had their cash seized. At times, people did not even know which agency had seized their money, making contesting the seizure extremely difficult. 
Our Founders understood the virtues of limited government.  The right to own property is enshrined in the Fifth Amendment to the United States 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, known as CAFRA.  It was a noble effort, but it plainly fell short.  In advancing CAFRA, Hyde noted that in 1993 DOJ forfeited $556 million.  Post-CAFRA, in 2012, DOJ seized $4 billion dollars. 

Forfeitures 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 law enforcement, who risk their lives to enforce the laws we write. Congress has failed to craft adequate laws, and DOJ has failed to implement sufficient policies.  The failure is ours, and I hope DOJ will work with us to fix it.   

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.

William Blackstone wrote, “[H]owever convenient these may appear at first, (and doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price all free nations must pay for their liberty in more substantial matters.”

It is passed time to pass comprehensive legislation to reform forfeiture laws.