2017-07-20 17:38:52 UTC
Clarence Thomas vs. Jeff Sessions on Civil Asset Forfeiture
Asset forfeiture has "led to egregious and well-chronicled abuses," Thomas
Damon Root|Jul. 20, 2017 10:45 am
Gage Skidmore / Flickr.com
Gage Skidmore / Flickr.com
Attorney General Jeff Sessions announced this week that the Justice
Department will increase the use of civil asset forfeiture, the practice
that allows law enforcement officials to seize property from persons who
have been neither charged with nor convicted of any crime. "Civil asset
forfeiture is a key tool," Sessions declared. "President Trump has directed
this Department of Justice to reduce crime in this country, and we will use
every lawful tool that we have to do that."
But civil asset forfeiture is not a "lawful tool." It is an unconstitutional
abuse of government power. The Fifth Amendment forbids the government from
depriving any person of life, liberty, or property without due process of
law. Civil asset forfeiture turns that venerable principle on its head,
allowing government agents to take what they want without the bother of
bringing charges, presenting clear and convincing evidence, and obtaining a
conviction in a court of law. It is the antithesis of due process.
By ordering the expansion of this unconstitutional practice, Sessions has
placed himself on a collision course with Supreme Court Justice Clarence
Thomas. As Thomas recently explained in a statement respecting the denial of
certiorari in the case of Leonard v. Texas, not only has civil asset
forfeiture "led to egregious and well-chronicled abuses" by law enforcement
agencies around the country, but the practice is fundamentally incompatible
with the Constitution.
Thomas did not mince words. The legal justifications offered in defense of
civil asset forfeiture, he pointed out, cannot be squared with the text of
the Constitution, which "presumably would require the [Supreme Court] to
align its distinct doctrine governing civil forfeiture with its doctrines
governing other forms of punitive state action and property deprivation."
Those other doctrines, Thomas noted, impose significant checks on the
government, such as heightened standards of proof, numerous procedural
safeguards, and the right to a trial by jury. By contrast, civil asset
forfeiture proceedings provide no such constitutional protections. Thomas
left little doubt that when the proper case came before him, he would rule
civil asset forfeiture unconstitutional.
Attorney General Sessions should take Justice Thomas' words to heart.
Damon Root is a senior editor of Reason magazine and the author of
Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave