Former DOJ Prosecutor Steps Up To Defend DOJ's New Asset Forfeiture Rules
from the ask-not-what-your-country-can-do-for-you-etc. dept
Because someone had to, a former DOJ prosecutor has stepped up to defend the grand reopening of federal civil asset forfeiture abuse. George J. Terwilliger III has been given space at the Wall Street Journal to tell everyone why they're wrong about civil forfeiture. (Non-paywalled version here.)
As part of the new president's "law and order" focus, Attorney General Jeff Sessions opened up the federal outlet for forfeiture, allowing state and local law enforcement agencies to route around local restrictions by asking for federal "adoption" of their forfeitures. This reversed the policy put in place by Sessions' predecessor, which limited adoptions and forced local agencies to adhere to local rules.
Terwilliger, who has cut more than one federal forfeiture check, claims there's nothing wrong with civil asset forfeiture. And if there is, the solution isn't less of it.
Last week Attorney General Jeff Sessions restarted the longstanding practice, suspended by the Obama administration in 2015, of allowing state authorities to use federal forfeiture procedures. Mr. Sessions also introduced important safeguards to protect innocent people.
Still, critics challenged the practice’s reinstatement, citing instances when police wrongly took property from people who turned out to be innocent. The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it.
Terwilliger offers no fixes. Instead, he heads down the Forfeiture Trail of Tears, reminding readers that drug dealers are bad and the things they do are bad.
Every day brings news of American families devastated by violence or drug use. Overdoses are a common occurrence. These tragedies are the work of criminal gangs that flood the streets with drugs and turn urban cores into combat zones. Such gangs exist for one simple reason: to make money.
No one arguing against civil asset forfeiture disputes these facts. All people are asking for is the government to secure a conviction before making off with someone's property. Terwilliger complains it's too difficult to tie cash and property to drug kingpins. Again, no one is saying this isn't difficult. But grabbing money, cars, houses, etc. from people without convicting them doesn't have more of an effect on them than taking their stuff and locking up their employees.
Whatever happened to using convictions as leverage? You know, encouraging someone to hand over info on higher-ups to secure a better plea deal? Apparently, this is no longer a significant part of the Drug War process. Instead, cops are just taking anything that isn't nailed down and telling themselves they're helping bring down kingpins, rather than just taking stuff because the law says they can.
Terwilliger -- still coasting right past the "fixing it" issue he brought up at the beginning of his op-ed -- claims the new rules are even more protective than the previous rules. The new rules force the government to move faster when filing for forfeiture, which will prevent agencies from sitting on someone else's property for months before giving them a chance to contest it. He also notes the DOJ will (theoretically) be less likely to "adopt" seizures under $10,000. But then he acts as though local agencies and the feds aren't all playing on the same team:
Scrutiny of these types of seizures by Justice Department lawyers will be ratcheted up to prevent and catch any overuse or abuse.
This seems unlikely. And the new rules already allow abuse by giving local agencies a way to skirt local forfeiture restrictions. The new rules also make future abuse more likely by encouraging local agencies to move ahead with forfeitures they normally wouldn't see a cent of, on the off-chance the DOJ will pick it up and cut them a check later.
Terwilliger also adds this fact-free assessment of civil asset forfeiture.
Police generally are careful and conscientious, including with asset forfeiture, which is why wrongful seizures are the exception. Smart law-enforcement leaders also know that if the practice is abused and innocent people are hurt, they could lose access to this valuable tool.
First, a low number of seizure challenges should not be viewed as a general indicator of the "rightfulness" of the majority of seizures. Challenging forfeitures is expensive and time-consuming. In many cases, the amount of money needed to challenge a forfeiture outweighs the value of the property seized. This is why a large majority of seizures nationwide weigh in at less than $1,000.
Second, there is no indication that law enforcement agencies/officials have done anything to curb forfeiture abuse. Not internally. There have been legislative reform efforts put in place in a number of states, but no one has taken this "valuable tool" away from law enforcement, no matter how much abuse has taken place. Finally, this directive makes forfeiture reform legislation mostly null and void, which means whatever was taken away by legislators as a result of law enforcement abuse, has been mostly reinstated by the DOJ's new rules. So, no law enforcement agency actually needs to worry about abusing themselves into a forfeiture-less future.
It's a bad op-ed supporting a terrible process -- a well-meaning program that's been abused past the point of recognition by law enforcement agencies. The nation as a whole is still 0-1 in national drug wars. Civil forfeiture hasn't changed that. All it's done is give the government more ways to take property from citizens.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: asset forfeiture, civil asset forfeiture, doj, george terwilliger, jeff sessions, legalized theft
Reader Comments
The First Word
“You know what I find troubling?
Privateers in olden times were given Letters of Marque that sort-of legalized illegal behavior, just like policemen are given badges.
However, a Letter of Marque only allowed you to make reprisals of foreign vessels while a badge enables to take the property of people with wrong skin color and attitude.
And privateers turning on citizens of their own country were quick to be declared outlaws (no longer under protection of the law, to be robbed, raped, tortured or killed at anybody's whim).
While policemen tend to get a paid vacation and a promotion when caught red-handed.
Subscribe: RSS
View by: Time | Thread
Choice of Words
Terwilliger does not call it an "effective tool." He calls it a "valuable tool." It would be "effective" if it actually helped us "win" the "war". Instead, he calls it "valuable" because police departments want the money.
It seems that they don't mind that we are "0-1 in national drug wars" because they don't want to "win" the "war". According to Vox, John Ehrlichman, Nixon's chief domestic policy advisor, allegedly said:
Who knows whether anyone has that awful motive today, but stealing just to fund the department still is stealing. As Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends on his not understanding it." Eliminating civil-asset forfeiture will be a tough row to hoe.
[ link to this | view in chronology ]
Re: Choice of Words
It's rather unusual to refer to an armed robber's loot as “salary.”
I think it's going to take some double-barrelled convincing. Double-barrelled. Double-ought.
[ link to this | view in chronology ]
Re: Choice of Words
More choice of words . . .
. . . reminding readers that COPS are bad and the things they do are bad.
[ link to this | view in chronology ]
Funny, when the goal is supposedly stopping abuse in a less-popular program, like providing essential comnectivity to the impoverished, the "correct" response according to Republicans is not to fix it, but end it.
https://arstechnica.com/tech-policy/2017/08/republicans-try-to-take-cheap-phones-and-broadband-aw ay-from-poor-people/
[ link to this | view in chronology ]
Terwilliger?
[ link to this | view in chronology ]
Voter opposition
Following the links in the previous Techdirt article (about the $16) leads to “86% of Utah voters oppose current civil asset forfeiture laws”.
Eighty-six percent amounts to about six out of every seven Utah voters.
[ link to this | view in chronology ]
First, define the problem
Still, critics challenged the practice’s reinstatement, citing instances when police wrongly took property from people who turned out to be innocent. The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it.
The issue here is that he, much like others who defend the process, doesn't seem to see stealing someone's property without a finding of guilt to be a problem, and therefore there's no need to 'fix' it. After all such actions are just outliers, rare exceptions, and it wouldn't do to spend large amounts of time and energy dealing with a minuscule problem when doing so might let those guilty people keep their stuff now would it?
If by 'fix' he meant 'institute legal requirements of a conviction of the owner prior to seizure' then yes, that would go a long way towards fixing the problem inherent in the asset forfeiture system(with, 'prevent the ones making the seizures from benefiting from them' being a good second step), but from the sounds of it his 'fix' is more along the lines of blocking and/or eliminating any attempts to stop police from stealing anything that catches their eyes.
[ link to this | view in chronology ]
You know what I find troubling?
Privateers in olden times were given Letters of Marque that sort-of legalized illegal behavior, just like policemen are given badges.
However, a Letter of Marque only allowed you to make reprisals of foreign vessels while a badge enables to take the property of people with wrong skin color and attitude.
And privateers turning on citizens of their own country were quick to be declared outlaws (no longer under protection of the law, to be robbed, raped, tortured or killed at anybody's whim).
While policemen tend to get a paid vacation and a promotion when caught red-handed.
[ link to this | view in chronology ]
Re: You know what I find troubling?
ABC News headline today: “Black police chiefs on Trump's law-and-order speech: 'We are not thugs'” (Aug 2, 2017).
(Yes, the story itself may be more relevant to Cushing's earlier article today. Focus on just the denial in that headline. Focus.)
[ link to this | view in chronology ]
Re: Re: You know what I find troubling?
[ link to this | view in chronology ]
Re: Re: Re: You know what I find troubling?
The whole headline, including speaker id, but particularly the ‘We are not thugs’ quote.
[ link to this | view in chronology ]
Minneapolis Star-Tribune Editorial Board
Minneapolis Star-Tribune Editoral Board, today: “Oppose wider use of asset forfeiture” (Aug 2, 2017).
The policing of Minneapolis-St. Paul has been in the news lately.
[ link to this | view in chronology ]
And those would be what?
Given the historical use of a pentathlon that the people who were robbed (pass all the laws you want, this is flat out theft under the most basic of our laws) have to jump through to gain the return of their property & costs that often exceed the value of the property, it really looks like its just making it to difficult for people who are to poor to complain to keep bending over and taking it.
I had "good faith" that this money committed a crime, so I took it. We now force the owner to PROVE the property is not guilty.
Something something presumed innocent... not
Something something presumed innocent unless you're poor or brown.
[ link to this | view in chronology ]
4th Amendment
Another way, conviction before forfeiture without benefit of exceptions be it 'good faith' or 'qualified immunity' or any other exceptions codified only in court action and not prescribed in law and following the plain text and intent of the 4th Amendment could, possibly, be considered not ideology.
Hmm...law without ideology. What a concept!
[ link to this | view in chronology ]
"They don't follow it, why should we?"
1 - The laws/constitutional protections are there to protect the innocent.
2 - Criminals aren't innocent.
3 - Therefore the protections of the laws don't apply to criminals.
Something along those lines I imagine. It's flawed in any number of ways, but if you don't think about it too hard I can unfortunately see why some people might see it as valid.
[ link to this | view in chronology ]
Re: "They don't follow it, why should we?"
Why isn't that the first rule of law enforcement, rather than 'I gots to get home for dinner...bang...bang...bang'?
But I hear you. The ingrained thinking that acts without thought...a preeminent construct of training and experience.
[ link to this | view in chronology ]
The principle of the matter
Maybe Terwilliger would (or thinks he would) fight for his property, no matter how small, because of the principle of the thing. If it took him $1,000 for him to get back $100 worth of property he'd do it, because it's his property and he's not going to let anyone take it away from him! If he thinks that way, he might very well view not spending $1,000 to get back $100 as an implicit admission that the $100 worth of property was in some way illegal.
[ link to this | view in chronology ]
Re: The principle of the matter
Don't over-think things.
From Cushing's article, George J. Terwilliger III is a bagman—
A bagman's job is to split up the take. He's in it as deep as the thug who points the gun.
Oh, I'm sure that if he thought some other gangster was shorting his cut, he'd probably put up some kind of a squabble over that.
But don't over-think, trying to understand his viewpoint. It's not necessary here. He's just a bagman.
[ link to this | view in chronology ]
Is it time yet?
[ link to this | view in chronology ]
Re: Is it time yet?
If a major metropolitan police department were to be disbanded, or confined to quarters, then the National Guard might have to patrol the city for a year or even two or three.
Consider Baltimore…
[ link to this | view in chronology ]
Re: Re: Is it time yet?
Know why trump has a potato in his pants?
- Cause he wants to be a dictator.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Le'me fix that for ya
[ link to this | view in chronology ]
To that I say: "Law and order harder, law enforcement people".
[ link to this | view in chronology ]
You can't fix something that is broken at its core. Asset forfeiture is contrary to American values. How can you fix something that exists for the express purpose of depriving someone of property/cash without due process of law?
[ link to this | view in chronology ]
[ link to this | view in chronology ]