By Damon Root, 7-20-17, at Reason.com:(emphasis 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.