Legislation Eases Burden of Contesting a Government Forfeiture and Raises Government’s Burden to Keep Property
Advocates Caution that the Bill Will Not End Policing-for-Profit
Washington, D.C. – Yesterday, the U.S. House Committee on the Judiciary unanimously approved asset forfeiture reform legislation. Known as the DUE PROCESS Act (H.R. 5283) and sponsored by Crime Subcommittee Chairman Rep. F. James Sensenbrenner (R-WI), House Judiciary Committee Chairman Bob Goodlatte (R-VA), Ranking Member John Conyers (D-MI), Crime Subcommittee Ranking Member Sheila Jackson Lee (D-TX), Representative Tim Walberg (R-MI), Representative Peter Roskam (R-IL) and others, the bill makes important procedural reforms that will help give property owners fighting a federal civil asset forfeiture action greater leverage to contest a government seizure and increases the federal government's burden of proof in civil forfeiture proceedings. The DUE PROCESS Act, however, currently does not address the “policing for profit” incentive issue.
“For decades police have used civil asset forfeiture to seize cash and other property from the public without any need to prove the person was involved in a crime,” said Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “A major overhaul of federal civil asset forfeiture laws has been long overdue, and it is good to see House leaders on both sides of the aisle taking a critical first step toward helping innocent people get their wrongfully seized property back from the government,” said Smith.
The ‘‘Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act of 2016” provides new protections and strengthens due process rights for property owners who are faced with the daunting task of contesting a federal civil forfeiture. The DUE PROCESS Act specifies a property owner’s right to a prompt initial hearing before a judge to challenge a seizure or claim undue hardship. The legislation also provides a right to legal representation to indigent property owners at all civil forfeiture proceedings and protects a defendant’s right to hire counsel of their choice. The legislation also requires the government to comply with certain administrative timeframes and notification procedures that benefit property owners, as well as provide transparency of federal forfeiture proceedings. Crucially, the DUE PROCESS Act also increases the federal government's burden of proof in civil forfeiture proceedings. Currently, federal law allows for preponderance of the evidence, which is the lowest standard of proof in a court of law. The DUE PROCESS Act would require clear and convincing evidence in civil asset forfeiture cases before the government can permanently take property. Advocates highlight, however, that the DUE PROCESS Act, as currently formulated, does not address the warrantless government seizures that will almost certainly continue unchecked until the profit incentives to pursue civil forfeitures are also addressed through legislation.
“We urge House and Senate leadership in Congress to pass comprehensive asset forfeiture reform this year,” Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “Congress should take reform a step further and leverage the enormous bipartisan and politically diverse support for eliminating federal laws and programs that have incentivized police to profit from the seizure of cash and other property from innocent people,” said Smith.
Advocates have urged congressional leaders to eliminate the Department of Justice’s Equitable Sharing Program. This federal program enables state and local law enforcement agencies to take property from people not convicted, charged, or even arrested of any criminal wrongdoing, and transfer the seized property to the Department of Justice in circumvention of the laws of the state in which the seizure occurred. As much as 80 percent of the proceeds from forfeited property are returned by this federal program to state and local law enforcement for their own operations, which creates a financial incentive for law enforcement to seize property. A growing number of states are reforming their forfeiture laws in the interest of protecting the rights of property owners and eliminating perverse incentives like those perpetuated by the Equitable Sharing Program. Advocates have also called on Congress to require the deposit of all federal forfeiture proceeds into the Department of Treasury’s general fund.
Federal civil asset forfeiture law allows the government to seize and keep cash, cars, real estate, and any other property from persons without any proof of criminal wrongdoing. Civil asset forfeiture begins when a federal, state or local law enforcement agency seizes property during a traffic stop or other encounter and takes legal action against the property seized from its owner by alleging that the seized property is connected in some way to illegal drugs or other criminal activity. Property owners do not need to be charged or convicted of a crime in order for law enforcement to seize property. In the 1970s and 1980s, Congress expanded to use of civil asset forfeiture by federal, state and local law enforcement in the name of fighting the war on drugs. Numerous law enforcement agencies took advantage of these expanded policies to profit from the confiscation of cash and other property from people during roadside stops and other interactions.
Yesterday’s committee action in the House builds upon momentum in Washington for major civil asset forfeiture reform. Last year, Senator Rand Paul (R-KY) in the Senate and Rep. Tim Walberg (R-MI) in the House introduced the Fifth Amendment Integrity Restoration (FAIR) Act. The FAIR Act eliminates policing for profit and increases the federal government's burden of proof in civil forfeiture proceedings. In January 2015, then-Attorney General Eric Holder issued an order establishing a new Department of Justice policy prohibiting federal agencies from accepting certain civil asset forfeiture assets seized by state and local law enforcement agencies. Groups that support reform come from across the political spectrum, ranging from the Center for American Progress and The Leadership Conference on Civil and Human Rights to Americans for Tax Reform and FreedomWorks.