Sessions' Civil Forfeiture Memo: It's Not Just the Money

Yesterday, Attorney General Jeff Sessions reanimated the suspended Department of Justice program that allows local police to circumvent their own state laws to profit from seizing property from individuals who have not been charged, much less convicted, of a crime. Over at Democracy: A Journal of Ideas, I wrote that this may have the unintended consequence of increasing racial profiling on American roads:

Virtually everywhere police stops are counted and measured demographically, black and/or Hispanic drivers are over-represented in those pulled over and subsequently searched for contraband. The vast majority of searches of drivers across ethnicities come up empty, and statistics show that black and Hispanic drivers who are searched are less likely to be carrying contraband than whites who are similarly searched.

Stopping drivers to search for drugs and drug proceeds is much cheaper than developing leads and building cases against large drug organizations through buy-and-bust operations or long-term stings, making interdiction through traffic stops all the more appealing. For that reason, while the disparity in stops almost certainly exists independent of asset forfeiture laws, increasing the use of forfeiture will likely result in an increase of racial profiling.  

These traffic stops that officers initiate to search a car aren’t the typical traffic stops many Americans have experienced. These stops are intrusive, probing, invasive interrogations that are designed to get presumptively innocent people to give up their right to not be searched. These stops are degrading, and the people who experience them–disproportionately black and Hispanic drivers–resent being treated like criminals with something to hide. As I wrote in the Case Western Reserve Law Review, this can diminish police legitimacy in minority communities and thus can erode public safety.

Attorney General Sessions paid lip service to new protections for innocent property owners who might have their cars or cash confiscated by police officers under this program. Even if those very limited protections reduce the number of innocent people whose property is taken by police, there are no protections against the invasive methods police use to find the property in the first place. These pretextual investigatory stops are themselves harmful to innocent drivers and this program provides cash incentives for police departments to employ them.

Congress should act to rein in the DOJ’s forfeiture powers and respect state limits on civil forfeiture. Likewise, state governments should remove the financial incentive police departments have to shake down innocent drivers. 

You can read the Democracy piece here. My CWRLR article is here.