It was a brief moment of bipartisan unity. Last September, the U.S. House of Representatives approved several amendments to block an infamous civil forfeiture program that had been revived by Attorney General Jeff Sessions. Under civil forfeiture, the government can permanently confiscate property even if the owner is never criminally charged. Tellingly, not a single representative voted against the amendments or voiced support for Sessions’ new forfeiture policy.
Sessions’ forfeiture announcement was deeply unpopular. A survey taken by Morning Consult/Politico shortly after his decision found that Americans opposed the new Justice Department policy by a margin of almost 3:1. Only 19 percent of Americans thought expanding civil forfeiture would do “more good than harm.” Even many on the right blasted the decision, including Republican Sens. Rand Paul and Mike Lee as well as the editorial board for National Review.
Yet despite this overwhelming consensus, none of the anti-forfeiture amendments made its way into the final version of the omnibus spending bill President Donald Trump signed last month. (The U.S. Department of Justice declined to comment for this story.)
“Congress’s failure to exercise its power over the purse to rein in even the most outrageous forfeiture practices is a disheartening setback in the fight to protect Americans’ private property rights,” said Institute for Justice Senior Attorney Darpana Sheth.
Over the summer, Sessions reversed a 2015 policy by then-Attorney General Eric Holder that placed strict limits on so-called “adoptive” forfeitures. Under these kind of forfeitures, state and local agencies can seize cash and other valuable property, transfer what they have confiscated to federal agencies (like the DEA or ICE), who then “adopt” the property to pursue forfeiture under federal law. Typically, forfeiting property under federal law is easier or more lucrative because safeguards for property owners found in many states’ laws are often missing.
Moreover, under adoptive forfeitures, participating state and local agencies can collect up to 80 percent of the proceeds from forfeited property. That provides a significant incentive to skirt state law and police for profit. In the year before Holder’s announcement, local and state law enforcement collected $65 million in funding from adoptive forfeitures.
But less than two months after the policy change, as Congress debated a massive appropriations bill (HR 3354) to fund multiple federal agencies, several representatives saw an opportunity to rebuke the Attorney General. Republican Congressmen Jim Sensenbrenner, Justin Amash, Tim Walberg, and Mark Sanford, along with Democratic Reps. Jamie Raskin and Steven Cohen, backed amendments to the bill that would cut off any funding for the adoption program until the next fiscal year. Each of their amendments passed unanimously by voice vote. Later in September, the House voted to pass the entire appropriations bill, including the amendments to defund adoptive forfeitures.
But the Senate never voted on HR 3354. And since both chambers of Congress had not approved an appropriations bill, Congress instead had to repeatedly scramble to scrape together continuing resolutions to keep the government funded. During this time, a broad reform coalition of nearly two dozen organizations, including the Institute for Justice, the ACLU, the NAACP and the American Conservative Union, wrote to House and Senate leadership “to ensure that the House-passed amendments regarding civil forfeiture be included in the year-long appropriations bill” that were being finalized.” Those amendments, the coalition wrote in a February letter, would be “the best, first step” to broader reform.
It seems those appeals fell on deaf ears. In March, Congress transformed a separate piece of legislation, HR 1625, into an omnibus spending bill. Despite its bewildering size—2,232 pages—not a single page includes the House-approved amendments against civil forfeiture.
This is just the latest example of how Congress has utterly failed to rein in civil forfeiture, even though forfeiture reform has been endorsed by both the Democratic and Republican Party Platforms and has the backing of 84 percent of Americans. For instance, since 2014, Sen. Rand Paul has sponsored and reintroduced the FAIR Act, which would greatly strengthen due-process protections for property owners and end equitable sharing.
Despite its clear popularity among voters, the Senate Judiciary Committee has never held a full committee vote on the FAIR Act, preventing it from getting considered on the chamber floor. More modest efforts like the DUE PROCESS and RESPECT Acts have also failed to get across the finish line. In fact, the last time Congress enacted any significant federal forfeiture reform was back in 2000, during the final days of the Clinton Administration.
Fortunately, there have been some bright spots for protecting Americans’ constitutional rights from abusive seizures. More than half the country has enacted civil forfeiture reform since 2014. Eight of those states have either completely banned or sharply restricted their agencies from participating in adoptive forfeitures. Two of those states—Nebraska and New Mexico—even abolished civil forfeiture entirely.
But only Congress can fix the glaring defects in federal forfeiture law.
