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October 01, 2014

Reform weighed for civil asset forfeiture laws in light of abuse

A recent roundtable on Capitol Hill brought congressional staffers and representatives from an array of organizations, including the ABA, together to discuss ways to reform civil asset forfeiture practices that allow law enforcement agencies to seize property without due process.

Current federal and state civil asset forfeiture laws, originally intended as a tool to combat drug crimes, authorize the seizing of property that law enforcement officials have probable cause to believe has been used in illegal activity without the owners of the property being charged with or convicted of a crime.

Current laws place the burden of proof on the property owner to demonstrate that the property is not tied to criminal activity. In addition, the law enforcement agencies may benefit from the net proceeds of forfeiture by seizing property under federal law rather than state and local law to participate in an equitable sharing program established in 1984. Despite enactment in 2000 of reforms that require the government to provide by a “preponderance of the evidence” that property that is tied to criminal activity and subject to forfeiture, instances of seizure of property from innocent individuals continue to increase.

Identical bills addressing the issue are pending in both the House and Senate but are not expected to see any action this Congress.

S. 2644 and H.R. 5502, known as the Fifth Amendment Integrity Restoration Act of 2014 (FAIR Act), would amend the federal criminal code to require the government to show a substantial connection between the seized property and the offense in a forfeiture proceeding and to  prove its case with “clear and convincing evidence” before seizing property.

The government also would be required to establish by clear and convincing evidence that the owner of any interest in the seized property intentionally used the property  in connection with the offense or knowingly consented to or was willfully blind to the use of the property by another in connection with the offense.

The bills also would require that the proceeds of forfeited property be turned over to the Treasury Department’s general fund rather than being placed in Department of Justice accounts that are used for law enforcement functions.

“The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime,” according to Senate bill sponsor Sen. Rand Paul (R-Ky.). “The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime,” he said.

The ABA has long supported civil asset forfeiture reform and worked with other organizations and Congress to help enact the 2000 reforms. The association supports the provisions in the current legislation that would shift the burden of proof in forfeiture proceedings to the government from the individual whose property was seized.

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