John Locke Update / Research Brief

One Step Forward and One Step Back

posted on in Law & Regulation, Legal Update
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Two and a half years ago, in my very first Legal Update, I discussed then Attorney General Eric Holder’s decision to curtail his agency’s controversial “adoptions” program. Under the program, the federal Department of Justice (DOJ) would take possession of assets seized by state and local law enforcement agencies, dispose of them under federal civil asset forfeiture laws, and then return the bulk of the proceeds to the agency that made the seizure. I noted that the change in policy had elicited a chorus of praise even from many of Holder’s harshest critics, and—adding my voice to the chorus—I described it as, a “significant step in the right direction.”

The chorus of praise elicited by Holder’s suspension of federal adoptions was nothing, however, compared to the tsunami of criticism elicited by current Attorney General Jeff Sessions’ decision, announced last week, to reauthorize and prioritize the program. Here’s a selection:

“A disheartening setback in the fight to protect Americans private property rights.” (Darpana Sheth, Institute for Justice)

“An attack on federalism.” (Ilya Somin, Washington Post)

“Criminal justice on a hunch.” (Jonathan Blanks, Democracy Journal)

“Jeff Sessions lets cops be robbers.” (Jacob Sullum, Reason)

“Sessions … has forgotten that the accused has the exact same rights as everyone else.” (Mary Chastain, Legal Insurrection)

“What’s worse that thieves? Thieving police.” (Megan McArdle, Bloomberg)

“Forget Russia. I’d fire Sessions over civil forfeiture.” Glenn Reynolds, USA Today)

I don’t have much to add to this litany of complaint, except to note that the decision to revive the DOJ adoptions programs is particularly bad news for North Carolinians. That’s because, while our state laws are among the best in the country in terms of protecting us from asset forfeiture abuse, federal asset sharing programs like the one that has just been reauthorized by Jeff Sessions make it possible for state and local law enforcement agencies to evade those protections. The more those programs expand, the greater the risk of asset forfeiture abuse in North Carolina.

For readers who aren’t familiar with it, civil asset forfeiture is a legal process that empowers law enforcement agencies to confiscate property they suspect has been used for, or derived from, criminal activity. Because it is a civil action against the property itself, there is no need to charge the owner with, let along convict the owner of, a crime. This makes civil asset forfeiture inherently unjust, not to mention a violation of due process. Worse still, because it allows law enforcement agencies to finance themselves through seizures rather than through taxation, civil asset forfeiture tends to pervert the proper relationship between the police and the public by turning the former into predators and the latter into their prey.

Fortunately, North Carolina resisted the wave of civil asset forfeiture that swept the country in the 1980s and 90s and continued to protect the rights of its citizens. Under our General Statutes, for example, forfeitures are generally only possible pursuant to a criminal conviction, and under the N.C. Constitution, the proceeds of forfeited property must always be used for “maintaining free public schools.”

Unfortunately, the expansion of federal asset sharing programs has made it possible for North Carolina law enforcement agencies to evade these state law protections. Before the DOJ adoption program was suspended by Eric Holder, North Carolina law enforcement agencies’ share of the proceeds from confiscated property processed through federal asset sharing programs had been averaging more than $15,000,000 per year, and even without the DOJ adoption program, their share last year of the proceeds of property processed through the remaining programs still totaled almost $9,000,000. With the reauthorization of the adoptions program, we should expect that number to return to at least its previous level and possibly go much higher.

If Attorney General Sessions’ recent order is any indication, there’s no point in waiting for the federal government to stop undermining the protections that we have wisely incorporated into our General Statutes and our state constitution. And under our federal system of government, we shouldn’t have to. Here at the John Locke Foundation, we have already begun studying what can be done under state law to curtail or eliminate federal asset sharing. We will present our findings soon.

Jon Guze is the Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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