Guest Commentary: U.S. Shouldn’t Trample on States’ Civil Forfeiture Reforms

By Charlie Gerow

Imagine having your bank accounts seized or even your car or house taken by the police without any criminal conviction — or even criminal charges.

Then imagine state legislatures and Congress working in bipartisan fashion to do something about it.

Hard to imagine as it might be, both scenarios are real. They’re happening because of something called civil asset forfeiture.

The key word is civil. The process doesn’t require criminal conviction or even criminal charges.

Under the civil forfeiture system, property can be confiscated based upon suspicion of criminal activity alone, with only limited judicial oversight, and without the full protections of due process and the stricter standards of criminal law.

Adding to a litany of troubling cases is the fact that law enforcement can keep the property — usually cash and vehicles, but sometimes houses and other major assets.

It’s a powerful incentive for them to use the system.

Both Republicans and Democrats have been speaking out in increasingly loud voices against the abuses of civil asset forfeiture.

Even Supreme Court Justice Clarence Thomas, no bleeding heart liberal, has expressed grave reservations about the use of civil asset forfeiture, concluding that there is serious question as to “…whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.”

Charlie Gerow

In Pennsylvania a broad, bipartisan effort to rein in the use and effect of the system resulted in legislation passed by the General Assembly and signed into law by Gov. Tom Wolf (D) this summer.

Among the leaders in that effort were Republican state Sen. Joe Scarnati, the President Pro Tempore; Jay Costa, the Democratic leader; conservative stalwart Mike Folmer, and both the Democratic and Republican Leaders in the House, Frank Dermody and Dave Reed.

It was supported by the Pennsylvania District Attorneys Association.

At the time the reforms passed, polls showed that nearly 85 percent of Pennsylvanians wanted serious reforms to the system to curtail the powers of civil forfeiture.

The reforms included increasing the standards by which law enforcement had to prove its case, shifting the burden to the state in certain cases and increasing transparency in how seized assets are used.

At the time of its passage, Wolf and several supportive lawmakers said it didn’t go far enough.

Several other states also acted to curb the abuses of civil asset forfeiture.

Those reforms are now put at risk by a recent move by U.S. Attorney General Jeff Sessions.

Just days after the Pennsylvania reforms were signed into law, Sessions reimplemented an older Department of Justice rule that allows state and local police to seek civil forfeitures under federal rather than state law.

Sessions’ action brought swift rebukes from both the Left and the Right.  It also brought quick, bipartisan legislative action.

Last week, the U.S. House of Representatives passed an amendment that will block funding of Sessions’ plan, Washington’s way of killing things. The amendment, which passed by voice vote was sponsored by both Democrat Jamie Ruskin, a progressive Democrat from Maryland and Jim Sensenbrenner, a conservative Republican from Wisconsin.

There are additional congressional actions brought by the strangest of political bed-fellows, from the most progressive members to those in the conservative Freedom Caucus. They’re united by a commitment to the protections of due process and the rule of law.

Sessions’ action was not only bad public policy but a menace to the protections of federalism.

Taking away basic due-process related reforms crafted by our state legislature and others by allowing state and local police to ignore them and use federal law instead strikes at the heart of federalism.

“Equitable sharing” of seized assets, is another end run around state reforms designed to reign in local law enforcement from profiting through civil forfeiture.

Civil asset forfeiture is a dangerous system, denying fundamental due process protections, undermining basic property rights and harming innocent people.  Its abuses are opposed by organizations as far reaching as the American Conservative Union and the ACLU, Americans for Prosperity and the NAACP.

All for good reason.

Charlie Gerow is the CEO of Quantum Communications which has a Maryland office in Annapolis. He can be reached at [email protected]

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