On July 19, 2017, the Justice Department announced a new policy directive that would reinstate a federal Asset Forfeiture program, known as ‘Adoptive Forfeiture’, that had previously been discontinued by the Obama administration.
Adoptive Forfeiture allows local and state law enforcement greater leeway to seize a person’s assets- permitting local agencies to keep 80% of the value and giving 20% to the federal government- whether or not they have been charged with or convicted of a crime. While the program had been controversial, it was also a significant source of income for local law enforcement.
In his press conference, US Attorney General Jeff Sessions explained that the goal of the directive was to combat high-level criminal organizations. Sessions described the policy as a “key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed.”
However, the program encountered bipartisan criticism in the past, leading in part to President Obama’s decision to terminate Adoptive Forfeiture.
Most audible among those complaints is the program’s conflict with the Due Process Clause of the Fifth and Fourteenth Amendments, which affords a person fair notice and a hearing before being deprived of life, liberty or property.
Federal Asset Forfeiture law allows law enforcement to seize property before an indictment or conviction is rendered, raising questions as to whether the suspect receives a fair hearing under the constitution. In response, many state legislatures have passed laws requiring a conviction before property can be seized.
However, Adoptive Forfeiture enables local officials to sidestep those state laws, allowing them to turn over seized property to the federal government and receive their percentage of the value.
Another criticism of Adoptive Forfeiture says that the program does not directly impact organized crime. As outlined by Attorney General Sessions, the goal of the program is to target high-level drug traffickers- an objective worthy of bipartisan support.
But the program’s median seizure amount is $9,000- a sum that does not indicate major drug-trafficking operations- with some seizures in the hundreds of dollars. Based on these results, opponents of the program argue that it targets poor neighborhoods, instead of high-level dealers, allowing major drug operations to operate with impunity.
With these valid bipartisan objections in mind, the program should be reformed to ensure it fights drug-trafficking operations while also protecting local communities.
Accordingly, here are three suggestions to make the program more effective and socially equitable.
First, the program must comply with the Due Process Clause of the Fifth and Fourteenth Amendments. Under those amendments, a person facing criminal penalty must receive a fair judicial proceeding, namely a preliminary hearing and trial, before surrendering their life, liberty or property. With Adoptive Forfeiture, a person may lose their property before receiving a hearing, or having their case tried in court.
Accordingly, the Adoptive Forfeiture process conflicts with the underlying theory behind the American criminal justice system- and the beliefs of our founding fathers- that life, liberty and property shall not be surrendered without a fair hearing. To make Adoptive Forfeiture constitutionally sound, and more credible, assets should not be seized until there is a complete adjudication of the case.
Second, a new method for allocating seized assets needs to be developed. As of now, local and federal law enforcement receive all funds seized under the program. While this provides needed income to local police departments, the current allocation scheme misses an opportunity further combat drug trafficking.
In low-income neighborhoods, where many of the asset seizures are conducted, opportunities for personal development and public services can be scarce. With few vocational routes and poor educational facilities, many youth turn to the drug trade for reliable income, thus providing high-level dealers with a constant source of labor.
One way to combat drug-traffickers is to remove their workforce by providing legitimate educational and career opportunities to residents of low-income neighborhoods. This can be done by redirecting seized funds back to communities, providing services for schools, vocational training and drug-rehabilitation programs.
Additionally, assistance should be provided to families whose members are subject to asset seizure, preventing further economic despair by providing support while they find another legitimate source of income.
In all, providing 45% to the community, 45% to local police and 10% to the federal government effectively uses seized funds to combat the program’s real target: high-level drug-traffickers.
Lastly, there should be a limit on low little can be seized under the program. According to some records, as little as $107 has been seized at one time. In 2015, Philadelphia had a median seizure amount of $192. As with the second recommendation, such pittances do not impact major drug-traffickers.
Instead, they imperil poor communities by removing sorely needed funds, forcing them to explore other sources of income- including the illicit kind. That said, to promote economic stability and meet the goals of the program, asset seizures should be limited to $1500 and above.
It is no secret; drug use is a problem for American society and law enforcement. Each year, thousands of people are lost to overdose, drug-related violence, and incarceration. This trend is entirely unsustainable, and not to mention a burden for taxpayers.
That said, Adoptive Forfeiture reforms, including ones offered in this piece, are necessary to achieve the essential goal of the program- toppling those who profit wildly on the despair and misfortune produced by illicit-drug consumption in the US.