End America’s Most Un-American Policy

(Bloomberg View) -- Innocent until proven guilty is a bedrock principle of U.S. justice. It is violated every day by an invidious police practice called civil asset forfeiture, which allows the government to deprive people of their property without even charging them with a crime. Instead of stopping this legally sanctioned theft, the Justice Department has decided to expand it.

In most states, if a police officer merely suspects that cash or property is connected to a crime, he or she may seize it without any actual evidence of wrongdoing. To recover what is rightfully theirs, Americans must prove that the property has no connection to a crime. In other words, they are guilty until proven innocent.

The practice began as a way to deal with pirates beyond the reach of maritime-law enforcement. It was rarely applied to ordinary citizens until 1984, when Congress attempted to crack down on drug trafficking by creating an Assets Forfeiture Fund within Department of Justice -- and allowing the agency to use the proceeds to pad its budget.

In effect, what Congress declined to appropriate, Justice would simply seize -- and it encouraged state and local departments to get in on the action. Through a federal program called "Equitable Sharing," police departments may keep up to 80 percent of seized property's value. In two decades, the federal government went from collecting $94 million in cash and assets a year to $4.5 billion. No doubt some of the confiscated property was illicitly possessed. How much, we will never know -- and at what cost to justice?  

The practice might have been designed to destroy trust in the law. When police officers stop a vehicle, they can ask a driver's permission to search it without a warrant. Many drivers acquiesce, believing they have nothing to hide. But if the officers find cash or property that they suspect may have been unlawfully obtained, they can seize and hold it, even if the car's occupants are never charged. The victims -- and that is what they are -- are left to weigh the time and expense of fighting the government against the value of the property seized.

The Obama administration scaled back an aspect of this program in 2015. It was a too-small step in the right direction, leaving most seizures unaffected. Now Attorney General Jeff Sessions has announced that he is rolling back even that timid reform.

Congress should simply abolish the practice of seizing assets outside of criminal convictions. It flies in the face of Republicans' commitment to limited government and Democrats' commitment to due process and concern for the poor (who pay the heaviest price). Until Congress acts, states and localities should lead the way. This un-American act of contempt for liberty has gone on long enough.

--Editors: Francis Barry, Clive Crook.

To contact the senior editor responsible for Bloomberg View's editorials: David Shipley at davidshipley@bloomberg.net.

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