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Tuesday, June 8, 2021

Biden Promised Criminal Justice Reform, But Still Hasn’t Repealed One of Trump’s Worst Policies

Civil asset forfeiture is big government at its worst.

Image Credit: Flickr-Phil Roeder | CC BY 2.0

Tonya Smith and her husband, Dimitrios Patlias, went to a casino in Maryland a few years ago and struck luck. They took their winnings and headed for dinner at another casino in West Virginia, but they never made it. On their ride over, they were stopped by police and forced to exit their car. Smith, who was 34 weeks pregnant at the time, was placed in handcuffs along with her husband as cops searched their car with dogs. Officers then questioned them about a slew of illegal activities: drugs, guns, smuggling untaxed cigarettes, gift-card fraud.

Ultimately, nothing illegal was found in the vehicle and they were allowed to leave with just a warning citation for crossing into another lane—but not before cops robbed them of the gift cards, an iPhone, and the $10,478 cash in their possession.

What’s the Hold Up?

What police did to the Patlias is shocking but not unique. Thanks to a policy known as civil asset forfeiture, such scenarios play out virtually every day in America. Many of those targeted cannot afford the legal fees to get their property back, and police are allowed to keep the money even if the owners are never charged with a crime.

For years reformers have worked at the state level to address the problem, advancing policies that require a conviction before asset forfeiture can be employed and demanding more transparency. They’ve faced an uphill battle as police departments and unions lobby heavily to block such measures.

In 2017, under the Trump administration, the Department of Justice struck a blow to these efforts, implementing a ruling that essentially says police can seize property from people not charged with a crime—even in states where that practice has been banned.

To date, that ruling is still in effect. Recently, former Congressman Justin Amash pointed out that the Biden administration has yet to take action to reverse this ruling.

As Amash highlighted, this policy steals billions of dollars from people. And studies have shown that low-income and Black Americans—the very people Biden campaigned on helping—suffer disproportionately under this program.

Furthermore, while at least $68.8 billion has been taken from Americans since 2000 under this program, reports show it has not reduced crime as supporters claim.

New Mexico eliminated its civil forfeiture law in 2015 and directed all criminal forfeiture proceeds to the state’s general fund instead of police departments. In comparison to its neighbors Texas and Colorado, New Mexico’s crime rates remained steady in the years following the reform—proving police can do their jobs without this program and that forfeiture has no bearing on deterrence.

Additionally, further data show that police are rarely targeting the drug kingpins and Mafia bosses they claim to be dismantling with this operation. Rather, 21 states report that over half of their forfeitures are less than $1,300. That’s hardly the makings of a mass criminal enterprise, and, notably, less than it would cost to hire an attorney to get the money back, making recovery unfeasible for many.

Will the Architect Tear Down the House He Built?

This is big government at its worst. Civil forfeiture violates the constitutional and property rights of millions of people. It uses the federal government to overturn state laws the feds have no jurisdiction over, violating the Tenth Amendment. And it empowers the government to steal from American citizens. This violates the Fourth Amendment’s protections and prevents citizens from being secure in their person and property.

Supreme Court Justice Clarence Thomas rightfully noted, “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings…. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property.”

This is a gross, unjust practice that should be abolished from sea to shining sea. Biden does not have the authority to make civil forfeiture go away altogether, but he could easily direct the Justice Department to overturn the 2017 ruling and stop loopholes that allow local police to funnel their forfeiture profits through the federal government if their state requires a conviction.

Many doubted Biden’s newfound support of criminal justice reform during the campaign of 2020. He is, after all, the architect of the government’s civil forfeiture law as well as several other bad bills that shaped our modern justice system.

This would be an easy campaign promise for Biden to deliver on. That the president continues to let policies like this stand confirms those who doubt the sincerity of his transformation.

  • Hannah Cox is the former Content Manager and Brand Ambassador for the Foundation for Economic Education.