Few nightmares can be more frightening to conservatives than the image of government agents running amok and seizing citizens’ property without due process. We like to think it can’t happen here.
But it can happen. And it is happening – on a regular basis.
Civil asset seizure without due process is taking place today across America, to the tune of $2.5 billion in assets taken by the government over the past 15 years.
The reason why Republicans haven’t made this legalized smash and grab an election issue is simple – government agents claim they are grabbing the assets of drug dealers. It’s the perfect cover.
Nobody wants to support drug dealers. The problem is, under federal law, government agents get to define who fits under the drug-dealer label. Agents can take first and ask questions later.
Under current rules of asset seizure, federal agents are asked to produce “clear and convincing” evidence that the assets are tied to drugs. But the evidence isn’t necessarily subject to a jury’s verdict. No judicial finding of guilt is required for federal agents to take your house, car and bank accounts.
Due process is short-circuited. Rule of law is deployed at a minimum threshold.
In other words, citizens can only hope the government gets it right when it comes to civil asset seizure. How comforting is that?
A national movement has begun to tighten the rules and bring due process into the practice. Many conservative organizations, including the Institute for Justice, Heritage Foundation and the Koch Institute, support legislation to bring stronger legal protocols to asset seizure.
In California, the State Legislature can introduce some accountability to the free hand created by federal rules on asset seizure.
Senate Bill 443, introduced by State Sen. Holly Mitchell (D-Los Angeles), would require California law enforcement agencies to bring or obtain a criminal conviction before they seize someone’s assets. The proposed legislation has bipartisan support but needs all the help it can get.
The bill would keep asset forfeiture cases in California courts, rather than handing them over to federal jurisdiction. This is important, and it’s why SB 443 is opposed by many local law enforcement agencies.
Under current rules, local agencies can circumvent California law and send seized assets to the feds for “adoption” under loose federal rules. The feds typically take a 20 percent cut for “adopting” the case. SB 443 would end the dubious practice of “adoption.”
And SB 443 would help prevent guiltless spouses from suffering financially when allegations are made against their partners. Under federal law, if you made the mistake of marrying the wrong person, too bad. SB 443 gives protection to innocent spouses.
No doubt, SB 443 raises difficult questions for conservatives. It exposes Republicans to the charge of being soft on crime, to not exerting maximum leverage on drug dealers.
But the bill speaks to larger questions – the rule of law and the reach of the federal government. If we lose sight of those concerns in rhetoric about drug dealers, another chunk of our democracy will be gone.
Obviously, convicted drug dealers should not be allowed to protect their assets. But before the government grabs someone’s property, we should at least make sure the accused person has committed the crime.
The rule of law requires a trial and conviction. Coincidentally, a trial and conviction is the minimum threshold established by SB 443.