Republican Texas Sen. Konni Burton has been civil asset forfeiture's fiercest opponent in the Texas Legislature. So when Attorney General Jeff Sessions attempted to override state laws in order to allow expanded civil asset forfeiture for local authorities, Burton publicly called the attorney general out.
Asset forfeiture refers to a practice that allows law enforcement agents to seize property from citizens without trial or conviction, under the mere suspicion that their property is being used in illegal activities. Asset forfeiture is profitable for the local agencies that practice it, and some states in recent years have taken action to limit or prohibit abuse of the practice.
In response, some local law enforcement agencies have circumvented state laws by having federal agencies to seize the assets on their behalf and split the take in a process called the Equitable Sharing Program.
The program raked in over $5 billion in a single year (2014), outpacing financial losses due to burglary, which came in just under $4 billion a year, according to the Washington Post.
In 2015, Sessions' predecessor, former Attorney General Eric Holder, placed restrictions on federal agencies that worked with local law enforcement, limiting the practice, and hampering the Equitable Sharing Program.
Under the restrictions, federal agencies could no longer help local law enforcement seize "vehicles, valuables, cash and other monetary instruments." However, items that threatened public safety such as ammunition, firearms, explosives, and child porn could still involve federal agencies.
State legislators, such as those in New Mexico, Florida, and Minnesota, also went to work to curb the growing problem of asset forfeiture, passing state laws that restricted local law enforcement from going to federal agencies to carry out the task of seizing assets.
Last December, Burton was one such legislator who proposed a bill that would curb asset forfeiture abuse in Texas, calling the practice "policing for profit." Burton's bill would require proof that the property was being used for illegal purposes, and for police to know the property was being used criminally beforehand before seizure of the property could occur. It also restricted equitable sharing by prohibiting federal involvement unless the value of the property exceeds $50,000, or the property necessitates federal agencies.
On Wednesday, Sessions removed the 2015 Obama era restrictions on civil asset forfeiture, opening the door for local authorities to once again utilize federal agencies in the seizure of property from innocents.
Burton posted a statement on her website, addressing Sessions' decision to reinstitute the practice.
“I am extremely disappointed in the decision by Attorney General Jeff Sessions to rescind certain policies implemented by his predecessors which limited the federal scope and use of civil asset forfeiture. While the A.G. has added some new safeguards against abuse, he is once again allowing law enforcement to potentially circumvent stricter state forfeiture laws and utilize weaker federal laws at the expense of the rights of the individual. Sessions’ announcement only underscores the dire necessity of making real change at the state and federal level by passing meaningful protections for the people into law, and not simply relying on prosecutorial discretion and rule-making, which changes from one administration to the next. Let me be clear: there is no bigger private property rights issue in America today than our current, egregious system of civil asset forfeiture. We must pass real reforms through the legislative process here in Texas and at the federal level as well. As we’ve seen today, the peoples’ property is not truly secure until we do.”
Sessions has been a proponent of civil asset forfeiture for some time.
In 2011, a motel owner, who was attempting to regain his seized property after some of his guests were caught with illegal substances in one of his rooms, was testifying in a Senate hearing. Sessions, then a senator, said that he was “very unhappy” with criticism of civil forfeiture, because in his view “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.”
Sessions then gave an unproven figure, and claimed that “95 percent” of forfeitures involve people who have “done nothing in their lives but sell dope.”
In a June interview with Reason, Burton said that asset forfeiture execution forces the person whose property is being seized to prove that it's not being used in a crime.
"I don't know how you prove a negative," Burton said.