Civil Asset Forfeiture Must be Done by the Book

Americans on both sides of the political aisle have worked to limit the usage of civil asset forfeiture.  For those who don’t watch John Oliver or read the Federalist, civil asset forfeiture is the legal process where police can seize assets suspected of aiding criminals. Law enforcement have seized assets even when there is no criminal conviction and those assets are given to the agency that seized the property. The agencies use the money for both legitimate and illegitimate reasons, such as bulletproof vests and slush machines.

Liberal and Conservative groups alike have worked hard to limit the abuse of asset forfeitures, the cabinet appointment of Jefferson Beauregard Sessions III notwithstanding. Most Federal asset forfeitures now require a conviction before property can be seized. However, a new case before the Supreme Court threatens to undo what little progress has been made towards asset forfeiture. This time though, the threat comes from the courts rather than an overzealous Attorney General.

In 2014, Henry Lo was indicted for wire fraud, mail fraud, device access fraud, and embezzlement of funds from a former employer and former girlfriend. The indictment included a potential asset forfeiture of Lo’s residence and six bank accounts if convicted. Lo plead guilty to wire and mail fraud, including a scheme where he enriched himself by $1,700,000. However, prosecutors neglected to include any mention of asset forfeiture in its plea agreement and the judge did not make any mention of it at the sentencing hearing. The government only asserted forfeiture when the U.S. Probation Office requested $2,244,384.39 in forfeiture. Instead of tracing the stolen property, as required by statute, the government only asserted that property seizure was “appropriate.”

On April 9, 2015, Mr. Lo was sentenced to a term of 70 months imprisonment, three years of supervised release, and restitution for $2,232,894.39. On appeal, the government conceded that federal law does “not expressly authorize personal money judgments as a form of forfeiture,” but that “nothing suggests that money judgments are forbidden.” Nevertheless, the Ninth Circuit affirmed the ruling, finding that since civil forfeiture furthers the cause of combating illegal drug trade, it was appropriate to seize the defendant’s money.

Civil Asset Forfeiture Should Only Be Used In a Manner Prescribed by Congress

 To summarize everything above, the defense is arguing that Congress only permits asset forfeiture in wire and mail fraud cases when the prosecution can trace the property or funds back to the crime. Any deviation by the judiciary from this procedure is a violation of the separate of powers, as judges have no power to create criminal punishments.

The legal requirement that the prosecution trace the property back to the crime is an important procedure. If the prosecutor cannot show how a property was used to commit a crime or how a defendant benefited from the crime, then law enforcement would not be seizing the property; they would be stealing the property. In this case, Lo plead guilty to gaining $1,700,000 by fraud. That money does not belong to him and the government has a right to reverse all of Lo’s gains. If Lo used the money to purchase a house in Florida, then the government has the right to seize that house. However, the prosecution must prove that Lo actually used a portion of the illegally obtained money to purchase the home in Florida. If Lo would have owned the house regardless of whether he committed the crime, then the government has no right to the house.

Civil liberty groups have largely succeeded in reforming forfeiture so that the defendant actually has to be guilty for his property to be taken. However, it is still not legal or morally right to take property from a convicted criminal merely because he owns the property. Without the tracing requirement, police could take property unrelated to the crime. They could also take any property from the defendant without limit. Just because a criminal defendant steals from a victim does not give the government to steal from the defendant.

The Importance of Judicial Restraint to Liberal Values

So far, I’ve only talked about the Lo case in relation to asset forfeiture. However, this case should show liberal voters and politicians the importance of judicial restraint. The defense for Lo is a textbook of judicial conservative talking points, with emphasis on separation of powers and the limited role of federal judges.

However, these talking points are now being used in service of important civil liberties, such as the limitation of asset forfeiture. Although limiting forfeiture is a bipartisan goal, liberals should realize that stopping judicial activism might be more beneficial in the near future. With a political conservative majority on the Supreme Court and with Mr. Trump appointing more political conservatives to the federal bench, liberals might not be able to rely on the third branch as they have in the past.

With America and its parties slowly realigning itself, liberals should be prepared to argue that the courts should be restrained and checked. If the federal government is dominated by Attorney Generals and judges who want to expand the executive branch’s power, then the only way to protect the civil liberties of Americans will be to adopt former conservative arguments regarding judicial activism. Strict adherence to the constitution, including the limitation of all three branches of the federal government, will be the best line of defense against entrenched conservatives like Jeff Sessions. With the political atmosphere as it is today, a strict reading of the constitution may be the only defense the nation has against the destruction of civil liberties.