Amid the feuds and the policy gridlock of the Trump Administration, one faithful servant of the White House, Jefferson B. Sessions III, the Attorney General, has been busy pushing through real policy changes that have been on his mind for decades. He's called for an inquiry into the link between marijuana and violent crime, and compared the drug's "life-wrecking" harms to those of heroin. And last month, falling further out of step with many Republicans' slow retreat from the war on drugs, Sessions reclaimed one of that war's most disquieting weapons: civil-asset forfeiture.

In theory, civil forfeiture allows law enforcement to seize cash, cars, and other goods with provable ties to crime. But it has also deprived thousands of citizens of their property without due process. Unlike criminal forfeiture, civil forfeiture doesn’t require a property owner's conviction, and the burden of proof falls largely on the person whose goods have been seized.

Since 2014, more than 20 states have passed civil-forfeiture reforms, with varying degrees of bite. In April, 2015, New Mexico’s Republican governor, Susana Martinez, signed into law a sweeping forfeiture-reform bill abolishing the practice in the state altogether. Connecticut, Nebraska, New Hampshire, and other states have, to different extents, followed suit.

But Sessions's order bucks this trend. In particular, it resuscitates a practice known as "federal adoption," which allows police and prosecutors to circumvent state restrictions on asset seizures by collaborating with federal authorities. Through this partnership, state and local authorities turn their seizures over to federal colleagues, who "adopt" them for prosecution—ultimately returning up to 80 percent of the assets to the originating cops or prosecutors to keep. One result, often unaddressed in critiques of forfeiture, is the tacit encouragement of racial profiling and targeting of property owners of color, who remain prime targets of the practice in much of the country.

A 73-year-old Amtrak retiree named Elizabeth Young understands what's at stake in Sessions's civil-forfeiture endorsement. In 2009, authorities raided her home in search of her son, who was accused of selling marijuana. Nearly a year later, she received word that the Commonwealth of Pennsylvania had filed a petition to seize her house and car, by way of civil forfeiture.

To Young, the lack of due process inherent in civil forfeiture represents "the tyranny of what they’re doing to poor people." When Young showed up in court to fight for her home and car, the judge tried to strike a deal, offering her house back if she gave up her car. She refused. The Chevrolet held papers from her now-deceased husband and a little box in which she'd kept his jewelry. So Young decided to fight.

Young did have one stroke of luck: free legal representation from Philadelphia's well-regarded Ballard Spahr law firm, which fought her case all the way up to the state supreme court. There, this past May, she won a significant victory: her case got remanded to the trial court, with an opinion that affirmed the Constitutional principles that her legal team had sought to underscore, including the notion that seizures shouldn't be "grossly disproportional" to the gravity of the offense.

Read the full article here. Subscription may be required.

Related Practice