Asset Forfeiture Reform Redux

It's time to revisit the very real problem of how law enforcement agencies at all levels of government employ the power of asset forfeiture as a means of harming, and in many instances destroying, the livelihood of individuals and small businesses.
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To much fanfare in 2000, seminal legislation was passed by a Republican-controlled Congress and signed by a Democratic president that actually limited the power of the federal government. By increasing the burden on the government when seizing and retaining assets belonging to individuals, the Civil Asset Forfeiture Reform Act (CAFRA) was properly hailed as a milestone in the difficult -- almost impossible -- task of protecting individual rights against constant incursions by law-and-order officials. I know; I was there.

Unfortunately but perhaps predictably, the euphoria CAFRA elicited has waned considerably in the years since that heady moment; captured at the time in a New York Times photo depicting four Congressman joining hands in a celebratory pose just off the floor of the House of Representatives. Led by House Judiciary Committee Chairman Henry Hyde, Democrats John Conyers and Barney Frank joined with me in expressing our bipartisan pleasure, that after years of trying, the Congress finally had corrected at least some of the abuses in what had become a cash cow for federal, state and local law enforcement -- civil asset forfeitures.

The first year following CAFRA's passage did witness a significant drop in the value of assets seized by the federal government -- from nearly $313 million in 2000 to just under $200 million in 2001. As ever, Uncle Sam has moved aggressively to make up that difference in recent years; raking in more than $1.0 billion in forfeited civil assets in 2013 alone.

The staggering dollar amounts reflected in these statistics, however, does not pinpoint the real problem in how law enforcement agencies at all levels of government employ the power of asset forfeiture as a means of harming, and in many instances destroying, the livelihood of individuals and small businesses. In pursuing civil asset forfeitures, the government need never charge the individuals with violations of criminal laws; therefore never having to prove beyond a reasonable doubt that they are guilty of having committed any crimes.

Anecdotal accounts of abuses of federal and state asset forfeiture laws are legion, and have been chronicled for years by credible and non-partisan organizations such as the Institute for Justice and the Heritage Foundation. Examples of abuses large and small continue to occur in every state of the Union.

Perhaps no recent instance of abuse better illustrates the burning need for the Congress to revisit the issue of civil asset reform, than the case of Jerry Shults and his family in Ft. Worth, Texas. Shults and other family members own significant assets in and around the Dallas-Ft. Worth area and run several profitable small businesses. Shults has not been arrested, and he has not been charged with violating any federal or Texas state criminal laws. So what's the problem?

The problem in a nutshell is that because another person who happened to do business with some of Shults' companies found himself in the gun sights of federal drug agents. Uncle Sam's agents therefore decided to seize millions of dollars in bank accounts, real estate, and other assets belonging to Shults and his family. In a move designed to inflict pain beyond Shults to his employees, the feds also seized some $3 million in employee pension funds.

It appears from court papers filed by the U.S. Attorney's office that the basis on which the government has moved to financially cripple Shults is that some of his businesses sold what the government claims is "synthetic marijuana." But, the government very pointedly has chosen not to charge him with such offenses; and in fact Shults maintains through his attorneys that his businesses never engaged in any activities involving products that are illegal under federal or state law. Of course, if the federal or state authorities charged Shults with violating the law, they would have to actually prove their case, and he would be clothed with the full panoply of rights guaranteed him under our Constitution and laws.

Far easier to simply punish him financially than have to prove he has done something wrong under the law.

This is exactly where we were in the prelude to CAFRA 14 years ago. And it is precisely why the 114th Congress when it convenes next month, needs to take the asset forfeiture baton brought forward by Henry Hyde so many years ago, and pass additional and substantive reforms. Such reform is essential to protect citizens against abuse by what Supreme Court Justice Louis Brandeis noted 86 years ago as constituting the "greatest dangers to liberty" -- "insidious encroachments by men of zeal, well-meaning but without understanding."

Justice Brandeis' words actually are painted on the wall of the U.S. House of Representatives. The woman designated by President Obama as the next Attorney General of the United States -- Loretta Lynch -- ought to read and remember those words as she heads to her January confirmation hearings. And every House member and Senator who cares about fairness and individual liberty more than government power and revenue, should cite them into the Congressional Record as they voice support for what ought to be a mainstay of the GOP's agenda for the upcoming legislative session -- "Asset Forfeiture Reform, Chapter II."

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