President Trump Can Do This and Please Both Conservatives and Civil Libertarians
During his speech after the election results had made it clear that he would be the next president, Donald Trump promised that he would be “president for all the people.”
No winning candidate ever says otherwise, but once in office they usually proceed to enact a host of laws that make things better for their most vociferous supporters while doing little or nothing for ordinary Americans. The “president of all the people” promise is soon forgotten.
There are many actions that Trump could take to make life better for ordinary people whether they supported him or not. One of them would be to reform civil asset forfeiture law and pull the plug on the federal government’s “Equitable Sharing” program that encourages state and local law enforcement agencies to collaborate with the feds in seizing property from people who have usually done nothing wrong.
Under civil asset forfeiture laws, the government can seize a person’s property – ranging from cash to cars all the way up to real estate – merely by asserting that the property was somehow involved in or resulted from the commission of a crime. The owner need not even be charged with much less convicted of any criminal action, and once the property has been taken, the government makes it as difficult as possible to ever get it back.
Civil asset forfeiture is an affront to due process of law. It can victimize innocent people no matter their race or ethnicity and no matter whether they’re well-to-do or poor. Most often, however, the people who have their property taken under civil asset forfeiture are poor and minority. And unless they’re lucky enough to get free legal help from an organization such as the Institute for Justice, those people have little chance at successfully battling through the system to get their property back.
I have written frequently about that problem. Here, for instance, is a piece from last September on the devilish system in Arizona.
Civil asset forfeiture is not just a state problem. Federal law also allows civil asset forfeiture and its “Equitable Sharing” program encourages state and local law enforcement to collaborate with federal officials, allowing them to keep a large chunk of the value seized.
Radley Balko explained the way “equitable sharing” works in this Washington Post article: “Under the program, a local police agency need only call up the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives or similar federal agency. That agency then ‘federalizes’ the investigation, making it subject to federal law. The federal agency then initiates forfeiture proceedings under the laxer federal guidelines for forfeiture. The feds take a cut and then return the rest – as much as 80 percent – back to the local agency.”
This is a neat way for state and local authorities to evade the laws now in place in many states that attempt to reduce the incentives for using civil asset forfeiture as a means of padding local budgets – what the Institute for Justice calls “policing for profit.”
Equitable sharing was put on hold for several months late last year and into this spring when the account to pay out the funds was out of money. But as soon as the account once again had the money, the Department of Justice resumed the program. That dashed hopes that it might just languish since the relevant statute (21 U.S.C. Sec. 881(e)) authorizes but does not require the Attorney General to make transfers to state and local law enforcement entities.
Among those expressing disappointment was Wade Henderson, president of the Leadership Conference on Civil and Human Rights He stated, “We are deeply disappointed that the Department of Justice has resumed this pernicious program that incentivizes police to essentially steal from the people they are charged with protecting. Current federal forfeiture rules create a financial incentive to pursue profit over the fair administration of justice, facilitate the circumvention of state laws intended to protect citizens from abuse, encourage the violation of due process and property rights of Americans, and disproportionately impact people of color and those with modest means.” (Emphasis added.)
Trump has a great opportunity to put an end to “equitable sharing” and reform civil asset forfeiture at the federal level by pushing for quick passage of reform legislation.
Bills have been introduced in both the House and Senate that would dramatically change the law. The Fifth Amendment Integrity Restoration Act would get rid of equitable sharing, raise the standard of proof required before government agents could seize property from mere “preponderance of the evidence” to “clear and convincing” proof, impose upon the government the burden of proving that the owner actually used the property in a criminal act or knowingly consented to it (thus preventing the typical case where a wholly innocent individual loses property because of illegal acts by someone else), and make other changes so the law is more just.
The need to defang civil asset forfeiture is one of those rare issues where there is agreement across the political spectrum. If Donald Trump wants to show that he is serious about being president “for all the people,” pushing a reform that protects the rights of all citizens and especially individuals in minority communities would be an excellent move.
Originally published on Forbes.