Americans deserve an attorney general who will uphold rule of law

On Nov. 8, President Obama announced that Loretta Lynch, the U.S. attorney for the Eastern District of New York, will be his nominee to replace outgoing Attorney General Eric Holder. This decision was met almost instantly with praise for selecting an anodyne, confirmable successor, and mild hand-wringing that the selection will not go far enough to continue the legacy that Holder enshrined in the office.

While Lynch does possess impeccable credentials, her tenure of service features several indelible marks that may undergo scrutiny during the advice and consent process in the Senate. From her stance on hot-button topics to her aggressive use of asset forfeiture laws, Lynch will be far from the surefire, bureaucratic professional appointment the popular press seems to think she will be.

{mosads}Holder, the president’s attorney general since his first term in office, is no stranger to controversy. From selective prosecutions of dubious infractions (and the willful ignoring of others) to catastrophically executed sting programs, the Department of Justice (DOJ) which he headed seemed more of an instrument of politics than of justice.. Even the highly touted, progressive-seeming federal Smart on Crime initiative treaded well-worn ground years after state policy groups of all ideological stripes began producing positive policy and public safety outcomes.

The parade continued in August, when Holder went on the record criticizing empirical risk assessments, an invaluable tool used by justice officials to triage the finite resources at their disposal to ensure that those who pose a threat to public safety are kept from the public, while those who are able to be punished with efficient, effective community-based sanctions are allowed to keep their work history and family intact.

While some have expressed consternation on the possibility of risk assessments introducing extrajudicial factors into sentencing decisions, this critique has been rebutted by scholars and stakeholders alike. In practice, validated risk assessments erect a firewall between extralegal variables and decision points in the criminal justice process, meting out a more equitable — and safe — outcome than traditional methods. It is difficult to say if Lynch seeks to pick up Holder’s errant torch, but given the persistent rhetoric of the current administration, it would be far from surprising.

Perhaps the largest hurdle facing Lynch in her upcoming Senate confirmation hearings is her affinity for seizing real and financial assets to be put to use in her office. Last week, The Wall Street Journal reported that Lynch’s office made $904 million dollars in criminal and civil asset seizures in fiscal year 2013. While this includes funds and property seized with attending criminal conviction, a great deal of this money was likely seized via civil proceedings against the property itself, leaving legitimate owners little recourse in countering abuses of this practice.

Asset forfeiture laws have received increasing scrutiny in recent years, following the illustration of both small– and large-scale systemic abuses from across the nation, and many states are mobilizing to protect innocent citizens while punishing those who would use their ill-gotten property. Texas is considering legislation that makes civil proceedings much more difficult. Minnesota has effectively prohibited the practice.

To be confirmed, Lynch will have to sit across from Sen. Rand Paul (R-Ky.), author of the Fifth Amendment Integrity Restoration (FAIR) Act. Paul’s bill would eliminate civil asset forfeiture at the federal level and stop the venue shopping permitted by equitable sharing agreements. Lynch’s explanation as to why her office made such copious use of asset forfeitures, including against Americans never accused of a crime, would be both illuminating and necessary, given the attorney general’s role in securing liberty.

The Senate has a solemn duty to all Americans to demand a nominee who will uphold the rule of law and keep the sanctity of the office inviolate, not one who capriciously uses the enormous powers of the Department of Justice to ends beyond its ambit.

Cohen is the policy analyst for the Texas Public Policy Foundation’s Center for Effective Justice. Follow him on Twitter @CohenAtTPPF.