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June 01, 2016

House committee approves civil asset forfeiture legislation

The House Judiciary Committee approved an ABA-supported bill on May 25 that would provide key protections to innocent persons whose property is seized under federal civil asset forfeiture laws while also harmonizing certain aspects of the federal forfeiture and bankruptcy laws.

The legislation represents the most significant major reform of the federal forfeiture laws since 2000.

H.R. 5283, the Due Process Act, would raise the standard of proof the government must establish from the current “preponderance of the evidence” standard to the significantly higher standard of “clear and convincing evidence.” The legislation also would provide for appointment of counsel for indigent property owners, institute a new early hearing process, allow for easier recovery of legal fees if the property owner is successful in the case, and codify the Department of Justice’s recent administrative changes to its civil asset forfeiture guidelines.

The ABA had strongly supported inclusion of the “clear and convincing” evidence standard of proof in the 2000 reforms, but the provision was not included in the new law at that time. Since then, however, the value of seizures subjected to federal forfeiture has exploded from $313 million to more than $1 billion in 2013.

“The ABA recognizes and supports the use of forfeiture as a valuable tool in fighting crime. But we have strong and growing concerns about the excessive and too-often unwarranted use of forfeiture against innocent property owners” ABA Governmental Director Thomas M. Susman wrote to the committee on May 24.

During development of H.R. 5283, two ABA-approved technical amendments designed to protect the interests of those involved in parallel bankruptcy proceedings were incorporated into the portion of the bill requiring the U.S. attorney general to create two federal databases making forfeiture information available to the public. These include a quarterly updated database on details of each forfeiture and a real-time database assisting persons whose property has been seized.

The first ABA amendment to the bill requires the quarterly updated database to include not just information about any concurrent or related criminal proceeding against the owner of the property but also information regarding any pending case under Title 11 in which the owner of record of the property is the debtor and any pending civil case in which a receiver has been ordered to take control of the property.

The second ABA amendment to the bill clarifies that the database assisting persons whose property is seized would allow any interested party, including but not limited to any owner, creditor or lienholder, to determine whether that party has an interest in the property and to inform that party and the general public on the specifics of how to contest each seizure before the forfeiture.

No further action has been scheduled on H.R. 5283, but Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and Ranking Member Patrick J. Leahy (D-Vt.) introduced similar legislation, S. 3045, on June 9 that also includes the ABA proposed amendments.

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