November 14, 2017

Udall Urges Protection of New Mexicans' Right to Due Process, Opposes Civil Asset Forfeiture

Calls on Appropriations subcommittee to defund Justice Department’s expansion of civil asset forfeiture

WASHINGTON – U.S. Senator Tom Udall joined a bipartisan group of senators in urging a U.S. Senate Appropriations subcommittee to protect New Mexicans' constitutional due process rights by defunding the practice of seizing – without a hearing – property that law enforcement believes is connected to a crime. The practice, known as civil asset forfeiture, violates due process protections outlined in the Fifth Amendment of the U.S. Constitution, the lawmakers wrote to the leaders of the Senate Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies.

The state of New Mexico abolished civil asset forfeiture in 2015. The same year, the federal government moved to restrict the practice. But U.S. Attorney General Jeff Sessions reversed course in July. Sessions’ order empowers federal law enforcement to “adopt” civil asset forfeiture cases, allowing state and local law enforcement agencies to circumvent the law in New Mexico and other states.

The senators wrote that the new order defies “fundamental principles of due process that are central to our nation” and urged the subcommittee leaders to block any federal funds from being spent to carry out Sessions’ policy directive. Such a move would effectively block the program from going into effect.

“Under current practices, federal law enforcement can confiscate property from individuals without first providing those affected with a hearing,” the senators wrote.“Once property is confiscated, the federal government is required to show by a preponderance of the evidence—the lowest civil standard—that the property was merely connected to a crime. Property owners who contend that they did not know their property was connected to a crime (for example, a property owner who lends a car to a family member or friend who commits a crime using the car) must prove their lack of knowledge—a remarkable evidentiary burden to impose on someone challenging government action. In all cases, the federal government is not required to charge someone with a crime as a prerequisite to seizing property. We believe these practices are an obvious violation of the due process protections found in the Fifth Amendment.”

Udall has previously expressed concerns over civil asset forfeiture policy. In May, he joined a bipartisan group of his colleagues to write to the Department of Justice urging the department to review its civil asset forfeiture practices to better reflect the constitutional rights of United States citizens.

In addition to Udall, the letter was signed by U.S. Senators Rand Paul (R-Ky.), Angus King (I-Maine), Mike Crapo (R-Idaho), Mike Lee (R-Utah), and Jeff Merkley (D-Ore.). Earlier this fall, the U.S. House of Representatives approved several amendments in a similar effort to block Sessions' directive.

Full text of the letter is available below.

Dear Chairman Shelby and Ranking Member Shaheen:

In July of this year, the Department of Justice announced that it would expand the practice of civil asset forfeiture by expanding the use of equitable sharing and adoptive seizures of property. As you work with your counterparts in the House to negotiate a final Commerce, Justice, and Science (CJS) Appropriations bill for Fiscal Year (FY) 2018, we urge you to defund the implementation of these practices.

During the consideration of H.R. 3354—the Make America Secure and Prosperous Appropriations Act—the House of Representatives unanimously accepted three amendments to block DOJ from reinstating a policy of adoptive forfeiture; those amendments are Walberg/Cohen #46, Raskin/Sensenbrenner #67, and Amash/Sanford #70. These amendments were championed by a diverse group of lawmakers and supported by a broad coalition of organizations, including the American Conservative Union, the Institute for Justice, the NAACP, and the ACLU. We also strongly support the inclusion of at least one of these amendments into the final CJS appropriations bill.

Civil asset forfeiture practices defy fundamental principles of due process that are central to our nation. Under current practices, federal law enforcement can confiscate property from individuals without first providing those affected with a hearing. Once property is confiscated, the federal government is required to show by a preponderance of the evidence—the lowest civil standard—that the property was merely connected to a crime. Property owners who contend that they did not know their property was connected to a crime (for example, a property owner who lends a car to a family member or friend who commits a crime using the car) must prove their lack of knowledge—a remarkable evidentiary burden to impose on someone challenging government action. In all cases, the federal government is not required to charge someone with a crime as a prerequisite to seizing property. We believe these practices are an obvious violation of the due process protections found in the Fifth Amendment.

Adoptive forfeiture and equitable sharing are particularly egregious elements of civil asset forfeiture because they not only violate due process but also attack principals of federalism. DOJ’s reinstated policy allows state law enforcement officers to circumvent state limitations on civil forfeiture by turning seized property over to federal officials for forfeiture in exchange for up to 80% of the proceeds of the property. This perversely incentivizes local law enforcement to confiscate suspect property even where state laws forbid the practice.

As Justice Thomas recently recognized in response to the denial of certiorari in Leonard v. Texas, “[t]h[e civil forfeiture system]—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.” We agree with Justice Thomas, and we ask you to ensure that none of our precious federal resources are used to implement these constitutionally suspect practices. Therefore, as you finalize a spending package for FY2018, we respectfully request the inclusion of language which will prevent the implementation of these polices.