Alabama Senator Jeff Sessions was confirmed as Attorney General today!
Much of the progress that our country has made in recent decades in attempting to restore some due process in forfeiture cases, civil rights, and protection against police misconduct will likely be reversed beginning now.
In my blog from February 4 I explain why I thought Sessions should not be appointed Attorney General. Add to all of my reasons the letter written in 1986 by the late Coretta Scott King, widow of Martin Luther King, to the Senate urging them to oppose Sessions’ appointment as a federal judge. Senator Bernie Sanders read her letter into the record today in this Twitter video.
by Brenda Grantland, Esq., 2/3/2017, updated 2/8/2017
(c) 2017 Brenda Grantland
Hold onto your house, cars, and bank accounts. Senator Jeff Sessions was just confirmed as Attorney General! Sessions is not only a staunch supporter of the Drug War, but an aggressive advocate for expanding asset forfeiture and resisting due process reforms.
Back in the 1990s I spent years lobbying for reform of forfeiture laws on behalf of the nonprofit organization Forfeiture Endangers American Rights (“FEAR”). Senator Jeff Sessions was one of our worst enemies of forfeiture reform. After 8 years of lobbying, our ideal forfeiture reform bill HR 1658 – sponsored by the late Rep. Henry Hyde (R-Ill.) and Rep. John Conyers (D-Mich) – passed in the House of Representatives in June 1999, by a vote of 375 to 48.
Before Rep. Hyde could get a Senate version of HR 1658 introduced, the DOJ got Senator Jeff Sessions to introduce a competing bill to counter the reforms of the Hyde bill. Senate Bill 1701 was the DOJ’s dream bill – it was most likely written by the DOJ. It started with some of the provisions of the Hyde bill but watered down the Hyde bill’s reforms, creating huge loopholes so that most people did not qualify for the due process reforms. Some of Sessions’ bill’s provisions were worse than current law. For FEAR’s point by point comparison of the two bills see this link.
The sponsors of S-1701 were Senators Jeff Sessions (R. Ala.) and Charles Schumer (D. N.Y.). The cosponsors are: Strom Thurmond (R. S.C.), Joseph Biden (D. Del.), Jesse Helms (R. N.C.), Diane Feinstein (D. Cal.) and Max Cleland (D. Ga.). All of the cosponsors other than Helms and Cleland were on the Senate Judiciary Committee, through which our forfeiture reform bill would have to pass.
These seven senators forced a compromise between the Hyde bill and the Sessions bill which watered down the Hyde reforms and added hundreds of new forfeiture triggering offenses. The compromise bill passed both houses and became CAFRA, which is still in effect today.
Now that Sessions is Attorney General, expect forfeiture enforcement – and forfeiture legislation – to get worse. And he will have stauch pro-forfeiture allies in both houses of Congress. The 1999 Sessions’ bill’s other sponsor, Chuck Schumer, is now Democratic leader of the Senate, and cosponsor Diane Feinstein is now ranking member of the Senate Judiciary Committee.
Sessions has not softened his stance in the 17 years since CAFRA passed. As Forbes Magazine reported, during a May 2015 Judiciary Committee hearing on civil asset forfeiture,
Sessions … declared that he was “very unhappy” with criticism of civil asset forfeiture. He went on to say that he thought “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.” Furthermore, he declared, “95 percent” of forfeiture cases involve criminals who’ve “done nothing in their lives but sell dope.”
Sessions Has No Problem With Civil Asset Forfeiture — And That’s A Problem, by George Leef, 1/2/2017, Forbes Magazine. Sessions’ claim that 95% of forfeiture cases involve criminals who have done nothing but sell dope is patently false. First of all, only a fraction of forfeiture cases involve drug offenses. There are over 400 forfeiture triggering offenses now, thanks largely to Sessions and the Senate Judiciary Committee compromise of CAFRA. Secondly, civil forfeiture does not require a criminal conviction, or even any criminal charges before property can be targeted – so these are not necessarily “criminals” who are losing their property. The vast majority of forfeiture victims are not charged with any crime. A comprehensive 10-month survey conducted by the Pittsburgh Press determined that “80 percent of the people who lost property to the federal government were never charged.” “Presumed Guilty, the Law’s Victims in the War on Drugs,” a series of articles by Andrew Schneider and Mary Pat Flaherty, beginning August 11 – December 22, 1991 in the Pittsburgh Press. More recent articles in other newspapers are still quoting that 80% figure, although it is impossible to verify because the DOJ doesn’t keep track of the correlation between civil forfeiture claimants and criminal cases.
In the 2015 interview Sessions disputed the claim that allowing police to keep the property they seize and forfeit creates a conflict of interest, saying there is “nothing wrong with having the money be given to the officers who helped develop the case.” Most citizens would disagree with him. Allowing the police to profit from the property they seize creates a conflict of interest, and a very serious one, especially now that police agencies depend on asset forfeiture as a funding source.
Asset forfeiture laws allow the government to strip forfeiture victims of their assets before trial, including the funds needed to defend themselves. With over 400 forfeiture triggering offenses to choose from, and no requirement of even any criminal charges, this creates a very devastating weapon which government agents can use arbitrarily to target virtually anyone.
For more about asset forfeiture abuses and how your property is vulnerable, see my new ebook, Your House Is Under Arrest, 2nd edition, published 1/11/2017.
(c) 2015 Brenda Grantland
reprinted from Truth and Justice Blog, 10/29/2015
As I have stated in previous blogs, third parties in criminal forfeiture cases are often treated worse than civil forfeiture litigants. 1/
In criminal forfeiture cases forfeitability of the property is determined in the criminal trial or guilty plea, and third parties are completely excluded from those processes. 2/ As a result:
(a) they have no right to intervene in the criminal case to raise a defense that is not being raised by the criminal defendant; 3/
(b) they have no right to confront and cross-examine prosecution witnesses in the government’s case in chief against their assets;
(c) they are never allowed discovery about the basis for the government’s forfeiture case;
(d) third parties are generally not permitted to file suppression motions (a right afforded civil forfeiture litigants); 4/
(e) they are not allowed to object to the criminal defendant’s plea bargain agreeing to forfeit their property;
(f) even when they get to their third party hearing process, third parties are not allowed to challenge the factual basis (“nexus”) for the forfeiture at all; and
(g) even if they win, they may not be entitled to attorney’s fees under CAFRA, though they may be entitled to attorneys fees under the Equal Access to Justice Act.
In short, third parties have their property tied up in court for years while the criminal defendant litigates his/her case. They are forced to wait until after the defendant is convicted, and after their property is forfeited, and after the criminal defendant is sentenced before they have any right to participate in any court proceedings at all.
(c) 2015 Brenda Grantland
from Truth and Justice Blog, 4/11/2015
While we are going through the effort to try to reform civil asset forfeiture laws we need to take a look at criminal forfeiture as well. Third parties in criminal forfeiture cases are often treated worse than civil forfeiture litigants. They certainly are not afforded the same level of due process protection.
Let’s face it, criminal procedure is designed to provide criminal defendants with their constitutional rights while aiding prosecutors and courts in efficiently prosecuting cases and forfeiting assets. It was not designed to protect the rights of people who are not parties. Victims of the crime and third parties who own interests in the property being forfeited frequently see their interests tied up for years in a process in which they do not get to participate, and in which their Due Process rights are ignored because they are not parties.
(c) 2015 Brenda Grantland
from Truth and Justice Blog, 3/19/2015
In a previous blog, What we really need in a federal forfeiture reform bill – part 2A, I talked about how the next round of forfeiture reform should repair the gaping holes the courts have gouged into CAFRA’s reforms, particularly those affecting the availability of counsel. One CAFRA reform that clearly did not hold is the provision requiring the government to pay the attorney’s fees of claimants who substantially prevail.
A Lexis search conducted this week turned up only 23 reported civil forfeiture cases in which CAFRA fees were granted, and 8 civil forfeiture cases where CAFRA fees were denied. And that was for the entire 15 years since CAFRA was enacted. That is less than two cases per year! Tens to hundreds of thousands of federal civil forfeiture cases have been litigated in that 15 year period.
Clearly CAFRA’s fee-shifting provisions did not work as planned. This is another of CAFRA’s reforms that the government has effectively nullified in practice, persuading courts to interpret the statutes restrictively and illogically to avoid awarding fees.
(c) 2015 Brenda Grantland
from Truth and Justice Blog, 2/6/2015
An article by Matt Sledge and Ryan J. Reilly, posted last night on Huffington Post, corroborates my initial reaction to Attorney General Holder’s policy order limiting Federal Adoption. The article, Justice Department Budget Projects Some Asset Forfeiture Payments Will Rise Despite Reforms, Huffington Post, 2/5/2015, quotes Justice Department deputy assistant attorney general Jolene A. Lauria Sullens as saying Federal Adoption “wasn’t a big revenue for the asset forfeiture fund” and “it was a very small amount of cases that were adopted.”
The Justice Department estimates payments shared with city and state police will actually increase to $500 million in the current fiscal year, which began in October, from $487 million in the previous fiscal year. The department projects these “equitable sharing” payments will fall to $476 million in fiscal 2016.
(c) 2015 Brenda Grantland
from Truth and Justice Blog, 2/2/2015, updated 10/15/2016
Attorney General Eric Holder’s Policy Order limiting a tiny aspect of the asset forfeiture program — federal adoption — is a hot topic in the news lately. In reality the policy change will not make a dent in federal adoptions because of the multi-jurisdictional task force exemption. A multi-jurisdictional task force is made up mostly of local and state cops, with a federal agent or two to give it that federal connection. See the DEA website page DEA Programs: State & Local Task Forces. Be sure to click on the interactive map on that page to see the multi-jurisdictional task forces operating in your state.
The Holder policy order was partially a clever ploy to appease those clamoring for forfeiture reform. It was also a Trojan horse because it encourages state and local police agencies to form multi-jurisdictional task forces with the federal government if they want to preserve their previously abundant Equitable Sharing revenue streams.
Task forces are governed by contract between participating police agencies. State and local police agencies are created and regulated by statutes and/or ordinances, and answer directly to the local or state government which created them, and the agency’s chain of command answers to the top official of the agency, with internal checks and balances to ensure that they enforce the law they were hired to enforce. The state or local legislature controls their purse strings and that is a big motivator to get them to obey the applicable state or local law.
The fact that the federal government could override that statutorily established chain of command, substituting federal law for the law of the state, county or city that hired them is questionable in itself. That state and local officers’ chain of command could be supplanted by a board of directors created by private contract between law enforcement agencies is a topic of grave concern that warrants discussion.
(c) 2015 Brenda Grantland
from Truth and Justice Blog, 1/17/2015
There was widespread rejoicing yesterday when U.S. Attorney General Eric Holder ordered a new policy governing the Asset Forfeiture Program’s “Federal Adoption” program (often known under the broader term, Equitable Sharing).
Immediately after the order was issued, newspapers, non-profit websites, and people on Facebook were celebrating the demise of civil forfeiture as we know it. Breathless articles were published on the internet and widely reposted, reporting the news based on facts gleaned from other newspaper articles – instead of the policy order itself. [Note: You may download Holder’s policy order and the DOJ press release about it from the Download Attachment links at the top of this page.]
As the story spread, exaggerations grew. By yesterday afternoon, the hysteria on Facebook was spreading faster than I could post comments debunking the misunderstandings. Forfeiture victims were asking if they can get their stuff back now.
The problem began with reporters who misunderstood the legal terms used in the order. For example, the web article Amazing! Holder Ends An Asset Seizure Program, which has since been replaced, 1/ said Holder announced the U.S. “was ending the Federal Government’s ‘Equitable Sharing’ program, otherwise known as civil forfeiture.” Some people took that to mean civil forfeiture had been abolished by Holder’s order – it hadn’t. Equitable Sharing is not the same thing as civil forfeiture. And Holder’s order was not really about the Equitable Sharing program, but the subdivision of that program known as Federal Adoption.
(c) 2014 Brenda Grantland
from Truth and Justice Blog, 12/6/2014
Today I approved the first comment ever on this blog. I screen all comments to avoid spam and because I don’t want a bunch of comments that don’t contribute substantially to the issue under discussion.
The comment I approved today — posted November 30, 2014 by “Folly” in response to my article “Criminal forfeiture laws need to be reformed too” — is well worth reading. Scroll down to the end of the above linked blog article to read Folly’s comment, describing his/her experience as a third party in a criminal forfeiture case. This comment illustrates exactly why the criminal forfeiture laws need to be amended.
As I understand it, Folly’s assets including his/her residence and bank accounts were seized in 2008. Folly and a codefendant were indicted in 2009. After a 3-week trial in 2011, the jury acquitted Folly and convicted the codefendant. The codefendant appealed. Two years after Folly’s acquittal the judge set a hearing on Folly’s assets. A year after the hearing the court finally ruled on Folly’s third party petition, finding Folly’s assets were still forfeitable despite Folly’s acquittal.
(c) 2014 Brenda Grantland
from Truth and Justice Blog, 11/19/2014
CAFRA’s attorney’s fees provisions have been eviscerated by the courts; this must be fixed
In my last few blogs about forfeiture reform I told you about CAFRA’s court appointed counsel provisions, allowing some indigent claimants to be appointed lawyers at the government’s expense.
Congress also created “fee shifting” provisions in CAFRA, created to encourage defense attorneys to take on civil forfeiture cases where the claimant was not completely indigent but probably lacks enough money to litigate the case to completion. CAFRA’s fee shifting provisions require the court to order the government to reimburse the claimant for their reasonable attorneys fees if the claimant “substantially prevails.” This sounded like a great provision when the law was first passed, but after a few years it was gutted by court decisions and prosecutor shenanigans.
As a general rule, litigants in the United States must pay for their own attorneys whether they win or lose the case. This is called the “American Rule” – as opposed to the “English rule,” where the losing party pays the winning party’s attorney’s fees as well as his own. There are exceptions to this rule. Congress has enacted over 100 “fee shifting statutes” which create exceptions to the American Rule, requiring the losing party to pay attorney’s fees of the adversary – several of which apply to forfeiture claimants. Under fee-shifting statutes, the court can – or in some situations, must (though they often don’t) – make the loser pay the winner’s attorney’s fees.