Sessions forcing Congress' hand to reform civil forfeiture

In recent years, state governments have acted to safeguard Americans' property rights, preventing the taking of private property without due process of law. As we have often discussed in this space, they have been curbing or abolishing the practice of civil forfeiture, by which government takes the property of people who are often never charged with a crime, let alone convicted of one, solely on the basis of suspicion that their money or property is involved in criminal activity.

Unfortunately, Attorney General Jeff Sessions is now trying to undo the states' progress.

Sessions issued a directive recently making clear his intention to embrace a policy of Barack Obama's Justice Department, which more than doubled federal forfeitures in its first five years. But he's actually going further than that, rolling back even the modest restrictions on forfeiture that Obama's administration had created in 2015.

Not only is Sessions encouraging more of it at the federal level, but his Justice Department will also be encouraging local law enforcement to circumvent state laws that have limited or abolished civil forfeiture. Under current federal law, local law enforcement can often circumvent state law by turning cases into joint federal investigations. The Justice Department colludes in this with its so-called Equitable Sharing program, by which the locals get paid back up to 80 percent of whatever is forfeited. Law enforcement and local governments have a perverse incentive to use forfeiture in many jurisdictions because the forfeited money often goes straight into the police budget.

There is a double irony in the fact that state legislatures across America have been moving in the opposite (and correct) direction on this issue by limiting or banning civil forfeiture. Not only has the heavy lifting on reform been mostly done by members of Sessions' own conservative wing of his own Republican party, but it is also being done on the basis of a time-honored constitutional principle. Federalism, especially the Tenth Amendment's reservation of powers to the states, is something conservatives supposedly hold dear. And it goes without saying that property rights fall into this same category.