Clarence Thomas vs. Jeff Sessions on Civil Asset Forfeiture

By Damon Root, 7-20-17, at mine)

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.


In March, National Review posted a piece about the Leonard v. Texas case:

According to the facts of the petition, a Texas police officer stopped James Leonard and Nicosa Kane on April 1, 2013, for a traffic infraction. A search of the vehicle yielded the discovery of a safe in the trunk, which contained $201,100 and a bill of sale for a Pennsylvania home. The money was seized because law enforcement officials believed that it was “substantially connected to criminal activity,” including the sale of narcotics. James Leonard’s mother, Lisa Olivia Leonard, claimed to be the rightful owner of the money from the house sale and sued the government to regain it. But because she didn’t raise her due-process claims at the trial level, the Supreme Court declined to hear her case, leaving her with little recourse.

While it may be foolish to carry around that much cash, Americans have a right to presumed innocence, and with a bill of sale, the money was clearly explainable and should never have been seized.

Justice Thomas has a problem with this procedure, as will some of the others, and Jeff Sessions will have a problem with the judge. With his years of experience, Sessions should have known better than to pursue this.


Categories: Political

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8 replies

  1. I was shocked that Sessions actually increased the strength of Civil Asset Forgeiture.
    Maybe the drugs would stop flowing if they STOPPED ALL IMMIGRATION.
    Just my thoughts.

    This deprives real Americans of their property and is not Constitutional.
    Sessions is a lawyer and knows this. My first thought was: did this come from Trump?


    • Yes, it deprives a lot of Americans and to the tune of billions of dollars. I read a piece yesterday that says Sessions has added new directives this time around, but from what I can tell all of it can be done after the fact, or ignored.

      – – “The new directive requires agencies that participate in the department’s asset forfeiture program to provide annual training on state and federal forfeiture laws to their officers.

      It also provides that legal counsel for the agency adopting the seized property must ensure that it complies with the law, “especially seizures made pursuant to an exception to the Fourth Amendment’s warrant requirement.”

      Local and state agencies must also provide evidence that a seizure was made pursuant to probable cause, as required by federal law.

      Adoptions of cash less than $10,000 will be granted “additional protections.”

      Unless the seizure was made pursuant to a state warrant, incident to an arrest, or the simultaneous seizure of contraband relevant to the forfeiture, or if property owner or possessor admits to its illicit nature, adoption will be possible “only if the U.S. Attorney’s Office first concurs.” – –

      According to the second paragraph, the various law enforcement agencies have to hire lawyers to check their work and make sure they’re complying with the law. With tight budgets, they’re not likely to comply. And since when are there exceptions to the Fourth Amendment?? It sounds to me like Sessions is power-happy.

      Liked by 1 person

  2. We see your Jeff Sessions and raise you one Clarence Thomas.

    Liked by 1 person

  3. I am really disappointed in Jeff Sessions. I thought that he was one of the good guys. I’d love to hear the justification for this unconstitutional measure to seize personal property without due process. I’m even surprised that Trump went along with this ill-conceived idea.

    The Fifth Amendment says (in part) “… nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    I may be some old, ignorant redneck deplorable, but I can read, and what they’re proposing doesn’t sound constitutional to me.


    • Same here, Garnet. He’s bound to know how this practice has been abused, but apparently he isn’t concerned about that, because he also knows what a tax-free money-maker it is. Perhaps he’s just inadvertently told us what his real priorities are.


  4. Yep. This is exactly what we discussed in your last column on asset seizure.

    If someone wants to drive around with 200 grand in their car trunk, that’s up to them. Maybe they don’t trust banks; maybe they’re preppers; maybe they’re on their way to buy a used Ferrari. Who knows? But unless and until the cops can PROVE IN A COURT OF LAW that’s it’s “illegal” money, it’s theirs to do with what they please, as dumb as it may be.


    • Absolutely, and Jeff Sessions, who’s been in law and politics since the 1980s knows this is unconstitutional, yet he’s determined to pursue it anyway.

      Those lawyers and judges that were so quick to shoot down Trump’s travel ban ought to love this, and if it makes to SCOTUS, Sessions is in for a comeuppance.


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