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November 30, 2017

ABA urges approval of asset forfeiture due process bill

The ABA commended Rep. Jim Sensenbrenner (R-Wis.) this month for leading a bipartisan effort to address due process concerns in federal civil asset forfeiture cases and urged the House Judiciary Committee to approve Sensenbrenner’s bill without weakening amendments.

ABA Governmental Affairs Director Thomas M. Susman emphasized in an Oct. 25 letter that the bill, H.R. 1795, would take important steps to improve current procedures, including specific notice requirements, representation rights, and burden-of-proof standards. Enactment of the bill, known as the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act of 2017, would mark the most significant major reform of federal forfeiture laws since 2000.

In his letter – sent to the leadership and members of the House Judiciary Committee, Financial Services Committee, and Energy and Commerce Committee − Susman noted that the ABA recognizes the punitive role of forfeiture in deterring crime and has adopted a Statement of Principles calling for forfeiture law reform based upon the recommendations of both prosecutors and defense attorneys.

Some of the ABA principles are part of the DUE PROCESS Act, including requiring the government to bear the burden of proof regarding whether property can be forfeited and increasing the burden-of- proof standard. H.R. 1795 would raise the burden-of-proof standard from the current “preponderance of the evidence” standard to the significantly higher standard of “clear and convincing evidence.” Another ABA principle included in the bill would extend the current timeline for property owners to contest forfeiture actions and would establish a uniform innocent owner defense.

The bill also includes provisions recommended by the ABA during the 114th Congress that are designed to protect the interests of those involved in parallel bankruptcy proceedings. These provisions are 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: a quarterly updated database on details of each forfeiture and a real-time database assisting persons whose property has been is seized.

The first provision would require 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 provision would clarify 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 public on the specifics of how to contest each seizure before the forfeiture.

In a press release at the time of the bill’s introduction in March, Sensenbrenner called civil asset forfeiture reform “a critical component of the overall effort to fix our broken criminal justice system.” There has been no action on H.R. 1795, which has 25 cosponsors and was referred to several committees.

In 2016, the House Judiciary Committee approved a similar bill that was supported by the ABA, but the legislation never reached the House floor for a vote.