Former DOJ Prosecutor Steps Up To Defend DOJ's New Asset Forfeiture Rules

Say That Again

from the ask-not-what-your-country-can-do-for-you-etc. dept

Because someone had to, a former DOJ prosecutor has stepped up to defend the grand reopening of federal civil asset forfeiture abuse. George J. Terwilliger III has been given space at the Wall Street Journal to tell everyone why they’re wrong about civil forfeiture. (Non-paywalled version here.)

As part of the new president’s “law and order” focus, Attorney General Jeff Sessions opened up the federal outlet for forfeiture, allowing state and local law enforcement agencies to route around local restrictions by asking for federal “adoption” of their forfeitures. This reversed the policy put in place by Sessions’ predecessor, which limited adoptions and forced local agencies to adhere to local rules.

Terwilliger, who has cut more than one federal forfeiture check, claims there’s nothing wrong with civil asset forfeiture. And if there is, the solution isn’t less of it.

Last week Attorney General Jeff Sessions restarted the longstanding practice, suspended by the Obama administration in 2015, of allowing state authorities to use federal forfeiture procedures. Mr. Sessions also introduced important safeguards to protect innocent people.

Still, critics challenged the practice’s reinstatement, citing instances when police wrongly took property from people who turned out to be innocent. The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it.

Terwilliger offers no fixes. Instead, he heads down the Forfeiture Trail of Tears, reminding readers that drug dealers are bad and the things they do are bad.

Every day brings news of American families devastated by violence or drug use. Overdoses are a common occurrence. These tragedies are the work of criminal gangs that flood the streets with drugs and turn urban cores into combat zones. Such gangs exist for one simple reason: to make money.

No one arguing against civil asset forfeiture disputes these facts. All people are asking for is the government to secure a conviction before making off with someone’s property. Terwilliger complains it’s too difficult to tie cash and property to drug kingpins. Again, no one is saying this isn’t difficult. But grabbing money, cars, houses, etc. from people without convicting them doesn’t have more of an effect on them than taking their stuff and locking up their employees.

Whatever happened to using convictions as leverage? You know, encouraging someone to hand over info on higher-ups to secure a better plea deal? Apparently, this is no longer a significant part of the Drug War process. Instead, cops are just taking anything that isn’t nailed down and telling themselves they’re helping bring down kingpins, rather than just taking stuff because the law says they can.

Terwilliger — still coasting right past the “fixing it” issue he brought up at the beginning of his op-ed — claims the new rules are even more protective than the previous rules. The new rules force the government to move faster when filing for forfeiture, which will prevent agencies from sitting on someone else’s property for months before giving them a chance to contest it. He also notes the DOJ will (theoretically) be less likely to “adopt” seizures under $10,000. But then he acts as though local agencies and the feds aren’t all playing on the same team:

Scrutiny of these types of seizures by Justice Department lawyers will be ratcheted up to prevent and catch any overuse or abuse.

This seems unlikely. And the new rules already allow abuse by giving local agencies a way to skirt local forfeiture restrictions. The new rules also make future abuse more likely by encouraging local agencies to move ahead with forfeitures they normally wouldn’t see a cent of, on the off-chance the DOJ will pick it up and cut them a check later.

Terwilliger also adds this fact-free assessment of civil asset forfeiture.

Police generally are careful and conscientious, including with asset forfeiture, which is why wrongful seizures are the exception. Smart law-enforcement leaders also know that if the practice is abused and innocent people are hurt, they could lose access to this valuable tool.

First, a low number of seizure challenges should not be viewed as a general indicator of the “rightfulness” of the majority of seizures. Challenging forfeitures is expensive and time-consuming. In many cases, the amount of money needed to challenge a forfeiture outweighs the value of the property seized. This is why a large majority of seizures nationwide weigh in at less than $1,000.

Second, there is no indication that law enforcement agencies/officials have done anything to curb forfeiture abuse. Not internally. There have been legislative reform efforts put in place in a number of states, but no one has taken this “valuable tool” away from law enforcement, no matter how much abuse has taken place. Finally, this directive makes forfeiture reform legislation mostly null and void, which means whatever was taken away by legislators as a result of law enforcement abuse, has been mostly reinstated by the DOJ’s new rules. So, no law enforcement agency actually needs to worry about abusing themselves into a forfeiture-less future.

It’s a bad op-ed supporting a terrible process — a well-meaning program that’s been abused past the point of recognition by law enforcement agencies. The nation as a whole is still 0-1 in national drug wars. Civil forfeiture hasn’t changed that. All it’s done is give the government more ways to take property from citizens.

Filed Under: asset forfeiture, civil asset forfeiture, doj, george terwilliger, jeff sessions, legalized theft