When Trump hosted representatives from the National Sheriff’s Association at the White House a little over two weeks ago, an event that should have been a snoozer took a turn for the surreal. True to form, the first words out of the president’s mouth were, “Oh, the sheriffs are great people.” From that inauspicious start to his closing remarks (“Thank you. (Applause.) It’s beautiful.”), Trump didn’t waste a single opportunity to schmooze, self-aggrandize or outright lie. Much of the conversation focused on the opioid epidemic, which Trump seems genuinely interested in addressing, but toward the end, Sheriff John Aubrey of Jefferson County, Kentucky voiced his concern about police departments facing pressure over asset forfeiture.
From the looks of the transcript, it doesn’t seem like Trump had heard of the controversial practice before that very moment. In only a few seconds, he was fully on board. Sheriff Aubrey’s explanation that “we take money from dope dealers” was enough to convince him that only “bad people” would criticize asset forfeiture. When Trump asked the sheriffs if they could “understand the other side of it” as though that was totally inconceivable, the bizarre thing is that he was being completely genuine. Five minutes earlier, the thought of asset forfeiture had never crossed his mind. So, it shouldn’t surprise Trump that he can’t understand the other side; he’d only heard reasons for it before he took a strong but still vague position. Trump even went on to joke about destroying the career of a Texas state senator who, as one of the sheriffs mentioned, wants to introduce legislation to reform asset forfeiture.
Asset forfeiture is the legal process of seizing property suspected of being involved in crimes. Historically, it was rarely employed until Prohibition, but the War on Drugs is largely responsible for its widespread use today. Legally, asset forfeiture disputes are between law enforcement and the seized property itself, which leads to cases with names like United States v. $124,700 in U.S. Currency. The vast majority of asset forfeiture cases go uncontested, and in those that are challenged, the burden of proof falls mostly on defendants, who have to prove that their property was legally acquired in order get it back. For members of low-income communities who can’t afford that kind of legal battle, there’s almost no recourse.
In most states, asset forfeiture is only an option when a crime has been committed, although the indictment doesn’t always need to be successful and you don’t even have to be the one accused of the crime for the government to seize your stuff. In the ’90s, Detroit police arrested a man for picking up a prostitute and used asset forfeiture to confiscate a car owned jointly by him and his wife. After she unsuccessfully filed to have the car returned, the Supreme Court ruled that her Fifth Amendment rights weren’t violated. In a more recent case, a Philadelphia family was put out on the street after their son was convicted of selling $40 worth of heroin out of their home. And in some states, including New Mexico, police can use asset forfeiture even when no crime has occurred.
By now you should be wondering why the sheriffs support this transparently awful practice. Sure, asset forfeiture works well in drug busts, but it’s clearly being misused in at least some cases. The problem is that it’s a massive honeypot for both police departments and the federal government. When the charges filed in an asset forfeiture case are federal criminal ones, the case is handled by the Department of Justice (DOJ) (contrast that with the less severe civil asset forfeiture which is dealt with in district courts). Under the DOJ’s Equitable Sharing Program, police departments can keep up to 80 percent of what they seize, while the DOJ itself gets the leftovers. In 2013, that accounted for $2.5 billion in local police department spending.
There is already agreement between both conservatives and liberals that using asset forfeiture this way is a bad idea. To his credit, Senator Rand Paul (also of Kentucky) introduced the Fifth Amendment Integrity Restoration Act (FAIR) to strengthen due process protections in asset forfeiture cases and remove monetary incentives for police to use the procedure. That bill died on the Senate floor two years ago. In one poll, 84 percent of respondents also agreed that the police shouldn’t be allowed to confiscate money or property before the person has been convicted of a crime. Most had never heard of asset forfeiture, however, which shows how lack of political will can sometimes be chalked up to lack of information.
So, this week, when you’re phoning your representatives at your co-op’s anti-Trump action party (God love ’em!), consider mentioning asset forfeiture. True, it might not seem as pressing today as other problems, and it definitely won’t make a catchy hashtag campaign, but this issue deserves a space in our broader discussions of police reform. Shockingly, it looks like we can’t leave justice up to good ol’ Sheriff Aubrey, let alone President Trump.
Contact Iain Espey at iespey ‘at’ stanford.edu.