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Dear Pot Lawyer,

What’s going to happen now that the attorney general has rolled back Obama’s civil forfeiture reforms?

Hopefully nothing. Cannabis legalization remains overwhelmingly popular, and there are signs that Congress despises asset forfeiture. For the blissfully ignorant, civil forfeiture is an abhorrent procedure that allows law enforcement officials to seize assets of individuals that are merely suspected of crimes, without any due process or judicial oversight. To get property back, a property owner must then prove that the assets were not used in any sort of crime. It essentially flips the presumption of innocence on its head.

You may be thinking, “How can that even be legal?” Former Attorney General Eric Holder had the same question, and took steps during President Obama’s time in office to limit a particularly egregious loophole that allowed law enforcement to circumvent state-level restrictions on civil forfeiture by asking federal agencies to adopt the seizure. The feds would swoop in, take the property, and give state police a nice kickback. This is the loophole that current Attorney General Jeff Sessions reinstated in July of this year, and is seen as a dire threat to legitimate state-level cannabis programs because it allows state-level protections to be avoided.

Forfeiture proponents like Sessions argue that civil forfeiture in an invaluable tool in the law enforcement toolbox because it can quickly be used to shut down large-scale organized crime. In the official Department of Justice press release issued on July 19, Sessions argued that civil asset forfeiture “is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels.” That may even be true, but at what cost? Civil forfeiture has been abused in the past to target innocent citizens, and will be abused in the future so long as it is allowed. One abuse is too many.

Mr. Sessions’ statements on the subject don’t provide much confidence. In the July 19 press release, he says that from now on “the Department [of Justice] will adopt smaller seizures of cash—between $5,000 and $10,000—only if there exists some level of criminality.” How comforting that the DOJ will now require “some level of criminality” before taking property without due process.

Fortunately, just last week the US House of Representatives passed an amendment to the 2018 appropriations bill that will prohibit the Department of Justice from using federal funds for federal adoption of state-level seizures. This is rightfully seen as a direct rebuke of Sessions’ new policy. The citizens don’t want this practice, and neither does Congress. Hopefully Sessions will take the hint.


Got a question? Email us at potlawyer@portlandmercury.com. And remember that if you have a legal problem, contact a lawyer! Our educational musings cannot be relied upon as specific legal advice.