Federal Order on Asset Seizure at Odds With State Laws

 Posted on February 06,2018 in Hartford Criminal Defense Attorney

When a person is convicted of committing a crime, it is understandable that the government might have interest in seizing proceeds generated by the commission of that crime. For example, if a drug dealer is arrested and convicted, the money he or she made selling drugs can reasonably be seized and kept by law enforcement and other state agencies—with proper reporting, of course. It also reasonable for the state to seize and keep other property that may have been used in the commission of the crime. A good example might be the computer used by a convicted scammer to defraud unsuspecting victims.

For many years, state and federal government agencies had wide discretion to seize assets that were allegedly linked to criminal activity. The problem, however, was that the agencies could—in many cases—keep the assets even if the assets’ owner was never convicted or even charged. The process for getting seized property back was often difficult, time-consuming, and expensive, and many owners simply gave up.

To combat this issue, some states—including Connecticut—passed legislation that prohibits asset seizure and forfeiture without an associated criminal conviction. At the same time, however, new initiatives by the federal Department of Justice (DOJ) seem to be encouraging a resurgence of the old problem.

U.S. Attorney General Pushes New Policy

In 2014, then-U.S. Attorney General Eric Holder issued an order that prohibited local and state law enforcement agencies from using federal law to seize assets without warrants or criminal charges. This past summer, current Attorney General Jeff Sessions put forth a new policy that reversed Holder’s rule. The new policy allows state and local police departments to seize assets when there is probable cause that the assets are linked to activities that violate federal law. Sessions’ rule also authorizes the federal government to “adopt” any assets that are seized.

DOJ officials insist that protections are in place to ensure that assets are only seized when there is sufficient evidence of criminal behavior, but many throughout the country are skeptical. While most people support the idea that criminals should not be able keep the proceeds of their crimes, “innocent Americans shouldn’t lose their right to due process or their private property rights in order to make that happen,” said California Representative Darrell Issa.

A Legal Mess

Around the same time that Attorney General Sessions announced his new policy, Connecticut Governor Dannell P. Malloy signed a measure that prevents local and state law enforcement agencies from keeping seized assets unless a conviction is secured. For the purposes of the law, plea deals, and diversion programs that result in the dismissal of charges are treated as convictions. While the seizure of assets and permanent forfeiture are two separate considerations, it is obvious that the new state law and the new DOJ policy are at odds.

For example, if Connecticut police seize assets in connection with a drug arrest but there is insufficient evidence to secure a conviction, state law requires the police to return the assets to the owner. The new DOJ policy, however, allows the federal government to adopt the seized assets when the activity in question violates federal law. Although most drug crimes are prosecuted at the state level, nearly all of them could constitute violations of federal law as well, which could potentially allow the DOJ policy to supersede Connecticut law. The policy still allows property owners to seek the restoration of their seized property, but there are no guarantees it will be returned, even without a conviction.

Call Us for Help

If a law enforcement agency has seized any of your property in connection with a suspected crime, it is important to seek legal help immediately. Contact an Connecticut criminal defense attorney to discuss your options today. Call 860-290-8690 for a free, no-obligation consultation at the Woolf Law Firm, LLC.

Sources:

https://www.washingtonpost.com/world/national-security/sessions-greenlights-police-to-increase-seizures-of-cash-and-property-from-suspected-criminals/2017/07/19/3522a9ba-6c99-11e7-96ab-5f38140b38cc_story.html

http://ij.org/press-release/connecticut-now-requires-criminal-conviction-civil-forfeiture/

https://www.forbes.com/sites/instituteforjustice/2017/07/11/connecticut-just-banned-civil-forfeiture-without-a-criminal-conviction/