On Wednesday, the U.S. Department of Justice reopened a loophole in a federal program that allows local and state law enforcement to seize and keep property from people who haven’t been charged of a crime. The loophole gives law enforcement the authority to overrule state laws, a power that former President Obama removed in 2015 and that Attorney General Jeff Sessions reinstated just recently.
The practice is vastly unpopular, even among conservatives, and the majority of Americans oppose civil asset forfeiture. Sessions and his department's plan to scale back on restrictions arrives in spite of bipartisan criticism that it is an overreach of federal power. Sen. Mike Lee (R-UT) chimed in on Twitter on Wednesday, writing that the Justice Department "seems determined to lose in court before adopting asset forfeiture policies that protect due process rights." Sen. Rand Paul (R-KT) gave the following statement:
I oppose the government overstepping its boundaries by assuming a suspect's guilt and seizing their property before they even have their day in court.
Congress initially passed the civil forfeiture law — which some critics call "legalized theft" — in 1984 to crack down on drug and criminal enterprises. Law enforcement, however, soon turned the practice into a something akin to a side-hustle to pad their budget. This means the police can pocket money from forfeited property and funnel it into salaries, armored cars, military-grade weapons, and even office parties.
In 2014, law enforcement snatched up more property from American citizens — including those innocent of crime — than all burglars stole that year. The practice is so widespread that the Institute for Justice published the "Policing for Profit" report to publicize forfeiture abuse. The project tracked law enforcement expenditures and graded each state on their civil forfeiture laws; North Dakota ranked the worst and New Mexico the best.
Current regulations allow law enforcement to keep a cut of the assets they seize, which creates an attractive incentive, especially when budgets are tight, the report's co-author Dick Carpenter told the Washington Post.
Trump himself has not expressed a strong opinion outside a remark in February that indicated he might be inclined to support the practice. He does, however, support eminent domain, which allows the government to acquire privately owned land for public use. As a businessman, Trump tried to use the power of eminent domain in a feud with an Atlantic City homeowner in the 1990s. In 2015 as a presidential candidate, Trump told Fox News' Brett Baier that eminent domain is a "wonderful thing."
Civil forfeiture could soon play a role along the U.S.-Mexico border, though, because the federal government needs to build the border wall on private land. In his budget blueprint, Trump requested funding “to pursue federal efforts to obtain the land and holdings necessary to secure the Southwest border.” Sen. Ted Cruz (R-TX) introduced the EL CHAPO Act that would divert civil forfeiture assets from law enforcement to financing the border wall — but criminal assets only, hence why it's named after the Mexican drug lord. Some members of the law enforcement disagree with the EL CHAPO Act.
"Congress has provided for decades that criminal proceeds should be used for restitution to victims and then for financing law enforcement operations, not for projects that members of Congress might just happen to think are desirable on a particular day," former Justice Department official Stef Cassella told Reuters.
Cruz is not the only one who supports funding the border wall through seized property. Considering the opposition from Republicans and Democrats alike on this hot-button issue, it will be interesting to see what lawmakers will do or not do in response.