Works in Progress Group # 7 Criminal Law & National Security

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Session Type: Works-in-Progress

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A Modest Proposal: Asset Forfeiture Litigation and Strategic Disinvestment

Continued law enforcement abuses and high-profile and unjustified police killings of unarmed people of color have renewed call for law enforcement and criminal justice reform. Whether the change is called reform, defund, or abolish the police, the goal is systemic change. How do we create meaningful change in a system where people joke that the safest place to hide after a murder is behind a badge? Collective action, accountability, curtailing police immunity, reform-minded prosecutors, and engaged legislators are part of the solution. But the historical and, for many, emotional role of law enforcement in the United States make change difficult and regionally specific. Professor Bender's paper evaluates one of the most common reform proposals in an unexplored light: cutting law enforcement’s autonomous budget by systemically challenging asset forfeiture through litigation.

The well-known problem with defunding the police through budget cuts is political. In some places, budget reductions are politically feasible, but in others law enforcement support is politically entrenched. Beyond political questions, a new critique is that defunding the police budget may lead to more aggressive policing because law enforcement can self-fund through asset forfeiture. The litigation approach proposed solves this two-fold problem. This paper explores the idea of defunding police through challenging the civil asset forfeiture process. My proposal bypasses political issues like gridlock and eliminates worries that budget cuts will lead to unintended consequences. Drawing on existing asset forfeiture and criminal justice scholarship and extensive litigation experience, I consider the current proposals for law enforcement reform and analyze how to implement a workable way to challenge asset forfeitures.


The Use and Abuse of Domestic National Security Detention

Are people convicted of terrorism-related offenses so dangerous that we must bend the Constitution to keep the public safe? Or should we treat them like people who commit other crimes – by prosecuting, convicting, sentencing, and then releasing them after they have served their criminal sentences? Can we trust the government to use the power to detain people without criminal charge without abusing it?

Professor Hallet indicates that the case of Adham Amin Hassoun raises these questions. Prosecuted after 9/11 for providing support to Muslims abroad in the 1990s and sentenced under the United States’ expansive material support laws, Hassoun avoided a life sentence only to find that the government never planned to release him after he served his sentence. He became the first person held under Section 412 of the USA PATRIOT Act, which purports to give the government broad authority to detain non-citizens who the government certifies are national security risks. The government abused that authority in Hassoun’s case, but perhaps more importantly than what happened to Hassoun himself, his case illustrates the ease with which domestic national security detention can be abused by government actors with perverse political incentives. Above all, Hassoun’s case should cause us to re-examine the traditional deference given to the government in national security matters, particularly when the government’s targets are from disfavored groups such as Muslims or other religious and racial minorities.