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 nonprosecution. The investigation found “that in at least 37 cases the Government bargained nonprosecution 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.