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

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.


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  • icon
    TechDescartes (profile), 2 Aug 2017 @ 12:54pm

    Choice of Words

    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.

    Terwilliger does not call it an "effective tool." He calls it a "valuable tool." It would be "effective" if it actually helped us "win" the "war". Instead, he calls it "valuable" because police departments want the money.

    It seems that they don't mind that we are "0-1 in national drug wars" because they don't want to "win" the "war". According to Vox, John Ehrlichman, Nixon's chief domestic policy advisor, allegedly said:

    The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

    Who knows whether anyone has that awful motive today, but stealing just to fund the department still is stealing. As Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends on his not understanding it." Eliminating civil-asset forfeiture will be a tough row to hoe.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2017 @ 1:49pm

      Re: Choice of Words

      Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends on his not understanding it."

      It's rather unusual to refer to an armed robber's loot as “salary.”

      I think it's going to take some double-barrelled convincing. Double-barrelled. Double-ought.

      reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 2 Aug 2017 @ 2:08pm

      Re: Choice of Words

      More choice of words . . .

      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.

      . . . reminding readers that COPS are bad and the things they do are bad.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 2 Aug 2017 @ 1:52pm

    "The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it."

    Funny, when the goal is supposedly stopping abuse in a less-popular program, like providing essential comnectivity to the impoverished, the "correct" response according to Republicans is not to fix it, but end it.

    https://arstechnica.com/tech-policy/2017/08/republicans-try-to-take-cheap-phones-and-broadband-aw ay-from-poor-people/

    reply to this | link to this | view in chronology ]

  • identicon
    Anonmylous, 2 Aug 2017 @ 1:59pm

    Terwilliger?

    Sideshow Bob's dad is super unfunny! Now I know where he gets it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2017 @ 2:05pm

    Voter opposition

    Following the links in the previous Techdirt article (about the $16) leads to “86% of Utah voters oppose current civil asset forfeiture laws”.

    Eighty-six percent amounts to about six out of every seven Utah voters.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Aug 2017 @ 2:07pm

    First, define the problem

    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.

    The issue here is that he, much like others who defend the process, doesn't seem to see stealing someone's property without a finding of guilt to be a problem, and therefore there's no need to 'fix' it. After all such actions are just outliers, rare exceptions, and it wouldn't do to spend large amounts of time and energy dealing with a minuscule problem when doing so might let those guilty people keep their stuff now would it?

    If by 'fix' he meant 'institute legal requirements of a conviction of the owner prior to seizure' then yes, that would go a long way towards fixing the problem inherent in the asset forfeiture system(with, 'prevent the ones making the seizures from benefiting from them' being a good second step), but from the sounds of it his 'fix' is more along the lines of blocking and/or eliminating any attempts to stop police from stealing anything that catches their eyes.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 2 Aug 2017 @ 2:07pm

    You know what I find troubling?

    Privateers in olden times were given Letters of Marque that sort-of legalized illegal behavior, just like policemen are given badges.

    However, a Letter of Marque only allowed you to make reprisals of foreign vessels while a badge enables to take the property of people with wrong skin color and attitude.

    And privateers turning on citizens of their own country were quick to be declared outlaws (no longer under protection of the law, to be robbed, raped, tortured or killed at anybody's whim).

    While policemen tend to get a paid vacation and a promotion when caught red-handed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2017 @ 2:49pm

    Minneapolis Star-Tribune Editorial Board

    Minneapolis Star-Tribune Editoral Board, today: “Oppose wider use of asset forfeiture” (Aug 2, 2017).

    Civil forfeiture upends the presumption of innocence that is the foundation of our legal system.

    The policing of Minneapolis-St. Paul has been in the news lately.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 2 Aug 2017 @ 3:33pm

    "Mr. Sessions also introduced important safeguards to protect innocent people."

    And those would be what?
    Given the historical use of a pentathlon that the people who were robbed (pass all the laws you want, this is flat out theft under the most basic of our laws) have to jump through to gain the return of their property & costs that often exceed the value of the property, it really looks like its just making it to difficult for people who are to poor to complain to keep bending over and taking it.

    I had "good faith" that this money committed a crime, so I took it. We now force the owner to PROVE the property is not guilty.

    Something something presumed innocent... not
    Something something presumed innocent unless you're poor or brown.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 2 Aug 2017 @ 6:51pm

    4th Amendment

    Other than ideology, just how do all these purveyors (Law Enforcement, Law Makers, Judiciary) morally explain their departure from the Constitution? Anti-crime...ideology. Pro police...ideology. Anti-drugs...ideology. Etc..

    Another way, conviction before forfeiture without benefit of exceptions be it 'good faith' or 'qualified immunity' or any other exceptions codified only in court action and not prescribed in law and following the plain text and intent of the 4th Amendment could, possibly, be considered not ideology.

    Hmm...law without ideology. What a concept!

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 2 Aug 2017 @ 7:01pm

      "They don't follow it, why should we?"

      1 - The laws/constitutional protections are there to protect the innocent.

      2 - Criminals aren't innocent.

      3 - Therefore the protections of the laws don't apply to criminals.

      Something along those lines I imagine. It's flawed in any number of ways, but if you don't think about it too hard I can unfortunately see why some people might see it as valid.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 2 Aug 2017 @ 7:18pm

        Re: "They don't follow it, why should we?"

        Except for that 'Innocent until proven guilty' thingy. I know it is difficult for the enforcement types to get their heads around that, but it is in the job description...when they swear to uphold the Constitution.

        Why isn't that the first rule of law enforcement, rather than 'I gots to get home for dinner...bang...bang...bang'?

        But I hear you. The ingrained thinking that acts without thought...a preeminent construct of training and experience.

        reply to this | link to this | view in chronology ]

  • icon
    Matthew Cline (profile), 2 Aug 2017 @ 7:56pm

    The principle of the matter

    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.

    Maybe Terwilliger would (or thinks he would) fight for his property, no matter how small, because of the principle of the thing. If it took him $1,000 for him to get back $100 worth of property he'd do it, because it's his property and he's not going to let anyone take it away from him! If he thinks that way, he might very well view not spending $1,000 to get back $100 as an implicit admission that the $100 worth of property was in some way illegal.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2017 @ 9:04pm

      Re: The principle of the matter

      Maybe Terwilliger would (or thinks he would) fight for his property...

      Don't over-think things.

      From Cushing's article, George J. Terwilliger III is a bagman

      Terwilliger, who has cut more than one federal forfeiture check...

      A bagman's job is to split up the take. He's in it as deep as the thug who points the gun.

      Oh, I'm sure that if he thought some other gangster was shorting his cut, he'd probably put up some kind of a squabble over that.

      But don't over-think, trying to understand his viewpoint. It's not necessary here. He's just a bagman.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2017 @ 10:19pm

    Is it time yet?

    Is it time for revolution 2.0 yet? It seems the "Admin Mob" have declared open warfare on the US general population. Maybe it is time to tidy up those "well organized militias" and remind the mob just who is boss. Is TRUMP-CO ready for war with the rest of us? This looks like the classic example of RICO definition type organization.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2017 @ 11:21pm

      Re: Is it time yet?

      Maybe it is time to tidy up those "well organized militias"…

      If a major metropolitan police department were to be disbanded, or confined to quarters, then the National Guard might have to patrol the city for a year or even two or three.

      Consider Baltimore…

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Aug 2017 @ 4:58pm

        Re: Re: Is it time yet?

        Could be that is their plan, cause a lot of mayhem and then declare martial law.

        Know why trump has a potato in his pants?
        - Cause he wants to be a dictator.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Aug 2017 @ 6:16am

    On the road to the public announcement that we are and have been in a police state

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Aug 2017 @ 11:31am

    Le'me fix that for ya

    Every day brings news of American families devastated by unwarranted police violence or civil forfeiture. Stealing from innocent citizens is a common occurrence. These tragedies are the work of incompetent administrations that flood the streets with borderline psychopaths and turn urban cores into fleecing markets. Such administrations exist for one simple reason: to make money.

    reply to this | link to this | view in chronology ]

  • icon
    JonC (profile), 3 Aug 2017 @ 12:28pm

    "Terwilliger complains it's too difficult to tie cash and property to drug kingpins."

    To that I say: "Law and order harder, law enforcement people".

    reply to this | link to this | view in chronology ]

  • icon
    JonC (profile), 3 Aug 2017 @ 12:31pm

    "The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it."

    You can't fix something that is broken at its core. Asset forfeiture is contrary to American values. How can you fix something that exists for the express purpose of depriving someone of property/cash without due process of law?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Aug 2017 @ 8:46pm

    Try these dicks who think circumventing the US Connstitution should be the norm for TREASON.. Get the convictions and HANG THEM BY THEIR NECKS UNTIL THEY ARE DEAD.

    reply to this | link to this | view in chronology ]


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