Jeff Sessions Brings Back Highway Robbery

Asset forfeiture is nothing short of unconstitutional “legalized” highway robbery. There’s simply no other way to describe it.
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That headline sounds like hyperbole or a metaphor, but sadly it is quite literal. Attorney General Jeff Sessions is bringing back a program which steals money and other valuables from people ― often while they’re traveling ― and then refuses to give it back unless the victim sues to get it back in federal court. The costs of bringing a federal case often are more than the value of the property stolen, or “seized” as Sessions would put it. This all takes place even though the victim is never charged with any crime. Meaning the only crime here is the highway robbery by the government, even if they pretty it up with the name “asset forfeiture.”

Still think I’m overstating the case? Here’s how one of these transactions works. You set out for a road trip, with some cash in your wallet to cover expenses. Or perhaps you’re moving to another city and have your start-up money with you in cash, to pay your new landlord first and last month’s rent plus deposit. You are pulled over to the side of the road in East Podunk, in a state you happen to be traveling through. Perhaps you are pulled over for speeding. Perhaps it is for a broken taillight. Or perhaps the cop was just bored and decided to pull you over for no real reason at all (“You seemed to be driving erratically”).

Being a good citizen, you fork over your driver’s license, registration, and proof of insurance. The cop responds by asking you to step out of the car. He then proceeds to accuse you of carrying drugs, because he “smelled them in the car.” He calls in a canine unit, and the dog barks once and lies down and takes a nap. The cop interprets this as a “positive response” and proceeds to search your car. No drugs are found, and you repeatedly tell the officer you’ve never done drugs in your life.

Now here’s where the whole scenario takes a leap into the surreal. The cop, angry that he couldn’t find those drugs he supposedly smelled, and after searching all the possessions you have in the car, announces that all the cash in your wallet along with all the fancy jewelry you are wearing and carrying is nothing short of “drug profits,” which he is therefore confiscating. Your property has officially been seized. The cop takes it all, and drives off.

Note that you were never arrested or charged with any crime ― because you haven’t committed any. No proof is required that the money and valuables weren’t legally acquired. The cop just flat-out steals them.

Your only recourse, at this point, is to fight the government in court to get your money and property back. This, however, takes a lot of time and legal fees, so you have to balance whether it’s worth it or not. Many just give up, and let the government keep the money. If you do persist, then you wind up with a case with the bizarre name of: “United States vs. $2,500, two watches, and a wedding ring.” You then have to prove that the money and goods have no nefarious origins. The government does not have to prove they were acquired illegally, you have to prove otherwise. This flips the entire concept of “innocent until proven guilty” on its head, of course.

None of this is hyperbole. None of it is any sort of metaphor. This is literally what has happened to thousands of people, all across the country (although it is more prevalent in some places). You are stopped on the highway through the threat of force (the police, in other words), your cash and goods are stolen, and you are then required to spend thousands of dollars in an attempt to get them back, with no guarantee of success. I don’t know what you’d call that, but to me highway robbery is a pretty accurate label.

The origins of this bad and frankly unconstitutional law were noble, of course. Initially, laws were passed to deny criminals the “proceeds of their crimes.” Drug kingpins would then lose their fancy homes, cars, boats, and other trappings of ill-gotten wealth. But somewhere along the way, the concept veered away from “drug kingpins” to “let’s just steal trivial sums of money from innocent travelers.” The big flaw in the law is the fact that no proof of criminality is necessary to seize any property any cop deems “suspicious.” They don’t have to prove you’re running drugs, in other words, you have to prove you aren’t.

Historically, one of the causes of the American Revolution was the heavy-handed police tactics that Britain had been engaging in. Smuggling in the colonies was rampant, especially when Parliament passed a bunch of new taxes. So “general warrants” or “writs of assistance” were issued, particularly targeting those in Massachusetts. From Wikipedia:

Colonial merchants, even those not involved in smuggling, found the new regulations oppressive. Other colonists protested that new duties were another attempt by Parliament to tax the colonies without their consent. [John] Hancock joined other Bostonians in calling for a boycott of British imports until the Townshend [Act] duties were repealed. In their enforcement of the customs regulations, the Customs Board targeted Hancock, Boston’s wealthiest Whig. They may have suspected that he was a smuggler, or they may have wanted to harass him because of his politics, especially after Hancock snubbed Governor Francis Bernard by refusing to attend public functions when the customs officials were present.

On April 9, 1768, two customs employees (called tidesmen) boarded Hancock’s brig Lydia in Boston Harbor. Hancock was summoned, and finding that the agents lacked a writ of assistance (a general search warrant), he did not allow them to go below deck. When one of them later managed to get into the hold, Hancock’s men forced the tidesman back on deck. Customs officials wanted to file charges, but the case was dropped when Massachusetts Attorney General Jonathan Sewall ruled that Hancock had broken no laws. Later, some of Hancock’s most ardent admirers would call this incident the first act of physical resistance to British authority in the colonies and credit Hancock with initiating the American Revolution.

It didn’t end there, however, as later the British searched another one of Hancock’s ships and confiscated a third one, for unproven charges of smuggling. Widespread anger at the abuse of such warrants led eventually to our Fourth Amendment to the U.S. Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You’ll notice that none of these conditions are met for the asset forfeiture program. There was no probable cause, there was no search warrant issued, and what was seized was whatever the cop found lying around in your automobile.

Asset forfeiture began with noble reasoning. Those convicted of major crimes would not benefit from their criminality. Crime does not pay, and all of that. But at some point these laws morphed into the nightmarish world where a cop decides to just steal stuff from an innocent motorist. Which is why there has been a big bipartisan pushback against the laws in the past few years. Some states which had their own loose forfeiture laws have tightened them up ― stating in many cases that such seizures aren’t legal unless a crime is actually proven. But the federal government didn’t change its own asset forfeiture laws to keep up. What this meant is that cops would, under federal/state crimefighting programs, claim the seizure as federal, doing an end-run around any state laws to the contrary.

The truly insidious thing about this whole story is what happens to the cash. Eventually, the cops get to keep it. It gets added to their budget. The sharing arrangement kicked back 80 percent of the value of the federal seizures to the local cops who did the seizing. Under President Obama and Eric Holder, this program was dialed back significantly, due to rampant and repeated abuses.

This is precisely what Jeff Sessions is now overturning. He is going to restart the federal/state sharing of seized assets once again, without changing the underlying unfairness (and unconstitutionality) of the law one whit. One particular passage from that article sums up the scope of this problem: “In 2014, federal law enforcement officers took more property from citizens than burglars did. State and local authorities seized untold millions more.” The A.C.L.U. analyzed one of those local jurisdictions and found that the median value of seizures in Philadelphia was a whopping $192. Not exactly targeting drug kingpins, in other words.

From a different Washington Post article on the same subject:

A Washington Post investigation in 2014 found that state and local police had seized almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001. The Post series revealed that police routinely stopped drivers for minor traffic infractions, pressed them to agree to searches without warrants and seized large amounts of cash when there was no evidence of wrongdoing.

Police then spent the proceeds from the seizure with little oversight, according to the Post investigation. In some cases, the police bought luxury cars, high-powered weapons and armored cars.

So far, reaction to the announcement from Sessions has been impressively bipartisan. Even some Republicans and conservatives have realized the inherent tyranny in the concept of civil asset forfeiture. That’s heartening, because it means there may actually be a chance of some legislative action to correct the rampant abuses which Jeff Sessions so clearly wants to bring back.

Asset forfeiture is nothing short of unconstitutional “legalized” highway robbery. There’s simply no other way to describe it. It creates a profit motive for cops to pull people over and just flat-out steal their stuff, so their department can buy a fancy new SUV for them to drive around in. If any other organization were behind such widespread tyranny, it’d be the biggest organized crime in all of U.S. history. Instead, the government is the racketeer. And Jeff Sessions sees absolutely nothing wrong with that.

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