America is in the midst of an important national conversation about the scope and powers we delegate to law enforcement agencies. From revelations of domestic surveillance by intelligence agencies to recognition of police militarization at the local level, there is a growing sentiment that our country needs to recalibrate the balance between security and liberty.
Yet civil asset forfeiture, one of the most flagrant examples of overreach, has attracted comparatively little public attention. This is a practice in which law enforcement agencies can seize money, property, or other possessions they characterize as connected with illegal activity. Disturbingly, neither a conviction nor a criminal charge are prerequisites for seizing assets. The U.S. Department of Justice (DOJ) reported a record haul of more than $4 billion in assets seized in FY 2012 and another $2 billion in FY 2013 through civil forfeiture.
Voices across the ideological spectrum agree that it is time to rein in civil asset forfeiture programs. American Civil Liberties Union (ACLU) members, Tea Party activists, libertarian thinkers, civil rights leaders, and good government advocates are among those speaking out against the practice in its current form.
The Obama administration appears to be embracing reform as well. Earlier in January, Attorney General Eric HolderEric H. HolderInstead of 'hope and change' Obama gave progressives Trump Republicans want to grease tracks for Trump Dylann Roof’s 'show trial' exhibits Justice Department at its worst MORE announced that DOJ would no longer acquire assets seized as part of a state law violation. While a laudable first step, Holder’s announcement should be viewed as a building block for future reforms rather than a capstone. His announced reforms would neither affect assets seized pursuant to federal law violations nor those acquired as part of joint investigations between federal and state or federal land local law enforcement agencies. Jacob Sullum of Reason estimated that 86 percent of the assets seized via civil forfeiture would not be affected by the announced reforms.
As the Senate embarks on confirmation hearings for Holder’s designated replacement, the topic of civil asset forfeiture should be an important part of the discussion with Lynch. As U.S. Attorney for the Eastern District of New York, Lynch was the top official in a hotbed of civil asset forfeiture– helping to bring in hundreds of millions of dollars in assets under the program in recent years. Senators should take the opportunity to ask the nominee what additional reforms, if any, she would pursue to build on the first step taken by Attorney General Holder.
Given Loretta Lynch’s high qualifications and the genuine bipartisan agreement about the importance of civil forfeiture reform, the questions she faces need not be adversarial. Instead, they should try to move us all closer to achieving something all too rare in Washington these days – a substantial and bipartisan policy victory that would make a start in repairing and rebuilding the trust between public and law enforcement that has frayed in recent years.
Boucher served in the House from 1983 to 2007. He currently heads the government strategies practice at Sidley Austin LLP. Mehlman served as assistant secretary of Commerce in the George W. Bush administration and manages the government relations firm Mehlman Castagnetti Rosen Bingel & Thomas.