For
the government, on civil asset forfeiture, it’s all about the Benjamins, by Printus LeBlanc, 4/12/17
The
Inspectors General of the Department of Justice and Treasury Department have each released a report on the civil
asset forfeiture practices of the Drug Enforcement Agency (DEA) and the
Internal Revenue Service (IRS), where law enforcement seize property even from
individuals who have not been convicted of any crime.
The
reports show the agencies view the American taxpayer as nothing more than a
walking talking ATM. Knowledge of the Fifth Amendment also seems to be mysteriously
absent from the agencies.
With
a new administration and congressional session, optimism is abound for new
legislation, and old legislation to be reintroduced. These two damning reports
on federal government abuse, released in the last 30 days, should give the new
administration and Congress reason to act.
The
Fifth Amendment of the Constitution states, “No person shall be… deprived of
life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.”
Recently,
the Supreme Court declined to hear a case involving civil asset forfeiture due to
procedural reasons. However, Justice Thomas gave hope to civil asset forfeiture
reformers.
The
Justice issued a statement suggesting how troubled he was with
civil asset forfeiture in its current form, saying, “Whether this Court’s
treatment of the broad modern forfeiture practice can be
justified by the narrow historical one is certainly worthy of consideration in
greater detail.”
Criminal
asset forfeiture and civil asset forfeiture are tools used by law enforcement
to seize property believed to be acquired through criminal means. The property
is sold and the cash divided between the cooperating agencies.
It
is important to know the difference between the two forfeiture actions. The Department of Justice describes
criminal asset forfeiture “as an action brought as a part of the
criminal prosecution of a defendant. It is an in personam (against the person)
action and requires that the government indict (charge) the property used or
derived from the crime along with the defendant. If the jury finds the property
forfeitable, the court issues an order of forfeiture.”
Civil asset forfeiture is brought in court against the
property. The property is the defendant and no criminal charge is necessary. U.S. v. $124,700, in U.S. Currency is an example of what an asset
forfeiture case looks like. It is very expensive to fight the charges in court
to get property back. Lawyer fees and court costs can often surpass the value
of the property. Nothing in there about due process.
How
large a problem is asset forfeiture? From 2001 to 2014, the federal government
seized over $29 billion in cash and property. From 1997-2013, 87 percent of DOJ forfeitures were civil according to the Institute for Justice.
That means no charges were filed against the property owner, it was just stolen
by the government.
The
DOJ Inspector General’s report detailed the staggering amount of money seized
by the Drug Enforcement Agency (DEA). Since 2007, the DEA seized $4.15 billion in cash,
representing 80 percent of all DOJ cash seizures. This figure does not include the
non-cash property seized, such as homes, cars, electronics etc.
The
report came to many disturbing conclusions, but perhaps the most disturbing was
the difference between the training and the real-world incidents. The DEA Agents Manuel states, any seizure should be “an action that takes place
incident to a major drug investigation.” The review showed something different.
Out of a sample of 100 seizures, only 44 had advanced or were related to
ongoing investigations, initiated new investigations, led to arrests, or led to
prosecution. Are DEA agents willfully ignoring their training, for the purpose
of seizing cash? Why are DEA agents conducting operations that do not advance
any investigations?
The
report further showed the arbitrary way in which it seems DEA agents enforced
the law. The agents would bargain with some people on how much cash to
seize, while seizing all cash from others. This practice raises multiple
questions. Why is there only enough evidence to seize a partial amount of
cash? If you have enough to seize some, shouldn’t that be enough for all? Why
are some people allowed to bargain, and others not? Where is the due process?
The
DEA doesn’t even collect and analyze data to monitor the efforts to assess the
impact on criminal investigations or risks to civil liberties. The DEA is not
alone in dubious civil asset forfeiture practices. The IRS has not seized near
as much as the DEA, but their practices are just as shameful.
The
audit took a sample of 301 investigations that resulted in millions of dollars of
property seized. Of those 301 investigations, only 21 cases were identified
with tax law violations. Almost 84 percent of those investigations that
resulted in seizing of private property involved legally source funds. The
remaining 16 percent were illegal or could not be identified.
The
most egregious violations of public trust occurred when agents would bargain
non-prosecution. The investigation found “that in at least 37 cases the
Government bargained non-prosecution in order to resolve the civil forfeiture.”
The IRS chose to go after the money, instead of the prosecution.
As
horrific as the problems are, there seems to be a faint hint of light at the
end of the tunnel.
Congress
has started to take notice. Sen. Rand Paul (R-Ky.) has reintroduced the Fifth
Amendment Integrity Restoration Act of 2017, aka the FAIR Act, S. 642. U.S. Rep. Tim Walberg (R-Mich.) has introduced partner
legislation in the House of Representatives, H.R. 1555.
The
legislation is simple, it changes the legal justification used for seizing
property. The law currently says, “a preponderance of the evidence” can
be used to seize property. The bills change that to “clear and convincing
evidence”. The legislation has bipartisan support in both Houses of Congress
but they should go further. No property should be taken without convictions.
Congress needs to protect the people from the government.
The
two reports show a clear pattern of violations of constitutional rights. The
agencies swear to uphold the Constitution, but conveniently forget the Fifth
Amendment, because they have a budget to meet.
The
problem is not just at the federal level. State and local authorities also
participate in the fleecing of citizens without due process, a violation of the
14th Amendment, that must also be addressed. It is unbelievable this practice
has lasted so long when the language of the Constitution is so clear.
Printus
LeBlanc is a contributing reporter at Americans for Limited Government.
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