Thanks to the work of a bipartisan team of lawmakers in the U.S. House of Representatives, federal civil asset forfeiture reform is a significant step closer to reality.
On Thursday, Reps. Bob Goodlatte, R-Va., John Conyers, D-Mich., Jim Sensenbrenner, R-Wisc., and Sheila Jackson Lee, D-Texas, introduced the DUE PROCESS Act, a bill that would dramatically enhance the legal protections afforded to property owners and provide for greater transparency and accountability in the federal forfeiture system.
If enacted, the DUE PROCESS Act would be the most significant change to federal forfeiture law since Congress first ramped up the program in the 1980s.
Before that, forfeiture was only an incidental component of America’s justice system, primarily used to enforce customs laws. But in 1984, Congress turned to forfeiture as a means of targeting the ill-gotten gains of criminal kingpins, drug dealers, and their money launderers.
Forfeiture’s drug-focused retooling brought it front-and-center, but its reach has since expanded far beyond drug crimes. Today, hundreds of federal crimes authorize forfeiture of cash, vehicles, bank accounts, and family homes.
Often, suspicion alone is deemed sufficient to justify the seizure of these assets. Because the ensuing cases are civil, not criminal, property owners enmeshed in the federal forfeiture system are not entitled to a presumption of innocence or to have an attorney appointed to represent them if they cannot afford one.
That means that if a person wishes to challenge the seizure of his property, he must essentially prove his own innocence, and do so without a lawyer if he cannot afford one. It is hardly surprising that most seizures are never challenged, owing to the high cost of contesting the forfeiture in many cases relative to the value of the seized property, and the low odds of success.
Meanwhile, the government need only demonstrate that seized property is subject to forfeiture by a preponderance of the evidence, a standard of proof much lower than “beyond a reasonable doubt” (which applies in criminal cases) or even “clear and convincing evidence” (which applies in some civil cases).
If the forfeiture is successful, federal law permits the agency which seized the property to keep the resulting proceeds, creating a direct and perverse incentive to seize currency and property, even when there is little-to-no evidence of actual wrongdoing, and often at the expense of other law enforcement functions like arresting and convicting criminals.
While the overwhelming majority of law enforcement officers perform their jobs—and a difficult and dangerous job it is—in an honest and ethical manner, the stories of abusive civil forfeitures are too numerous and too widespread to chalk up to “a few bad apples.”
It is a systemic problem that ought to be addressed. Civil forfeiture has become a system stacked against property owners in virtually every way possible—one which the DUE PROCESS Act aims to begin to rebalance.
Among other things, the Act would:
Raise the Burden of Proof: The measure proposes to raise the burden of proof in forfeiture cases to “clear and convincing evidence” – the same high standard recently adopted by several states as part of their own forfeiture reform efforts – and places that burden squarely on the government.
Under the Act, property owners would no longer have to prove their own innocence. Rather, the government would need to demonstrate that a property owner intentionally used his property to commit a crime, knowingly consented to its use, or reasonably should have known that the property might be used in connection with a crime (a concept in the criminal law known as “willful blindness”).
Ban Forfeitures in Legal-Source Structuring Cases: Federal law requires that cash deposits to bank accounts exceeding $10,000 in value be reported, and makes it a crime to avoid this requirement by “structuring” deposits—that is, splitting a large sum of cash into smaller deposits so as not to trigger a report.
The goal is to track illicit drug and gambling proceeds, but there are a great many entirely legal and legitimate reasons why an individual or a small business, who are engaged in no wrongdoing whatsoever, might make repeated cash deposits below $10,000. Federal agencies have taken advantage of structuring laws to forfeit vast sums of money, including money that authorities conceded had been earned legally.
Both the Justice and Treasury Departments recently announced internal policy changes forbidding this practice; the Act codifies this policy.
Guarantee Indigent Defense: All claimants are guaranteed a right to legal counsel in civil forfeiture cases. If a property owner cannot afford an attorney, one will be appointed by the court.
Provide Greater Opportunity to Recover Attorneys Fees: Successful claimants would be entitled to file for attorney’s fees, including if they prevail by settlement (provided the settlement returns at least half of the value of the seized property).
This will act as a significant disincentive to one of forfeiture’s more odious practices: Seizing assets on dubious grounds, and then offering a “settlement” that returns some of the seized property, while forfeiting the remainder to the government. Property owners, realizing the deck is stacked against them, often accept these settlements as the only feasible means of getting back any of their seized property in a timely and cost-effective manner.
Improve Transparency Through Reporting Requirements: The Attorney General would be tasked with creating and maintaining a publicly-available database to track federal forfeiture cases.
The database would document, among other things, what is seized, where it is seized, what the underlying alleged offense is, and whether the property owner is charged with, or convicted of, a related criminal offense.
Forfeiture cases would also be subjected to routine audits to ensure agencies are complying with the letter and spirit of federal law. And, for the first time, agencies would have to document their internal administrative decisions in cases of remission and mitigation.
In our report, “Arresting Your Property,” Heritage’s Meese Center identified reforms like these as necessary to return forfeiture law to its original, laudable-but-narrow purpose: Relieving drug dealers and criminal kingpins of their ill-gotten gains.
Unfortunately, two of the most crucial reforms—returning forfeiture proceeds to the general treasury and eliminating the equitable sharing program—are absent from the bill.
This means that federal law enforcement agencies can continue to retain and spend forfeiture proceeds without Congressional oversight and with little accountability. And, thanks to the equitable sharing program, they can share these proceeds with state and local law enforcement agencies if they transfer seized property to the federal government for forfeiture under federal law, thereby tacitly encouraging state and local agencies to circumvent state forfeiture laws when federal standards make forfeiture cases easier to win or would allow them to retain a greater percentage of the proceeds.
Abusive seizures will persist as long as law enforcement agencies are empowered to self-finance through the forfeiture system. This funding mechanism demands reform.
But, the litany of procedural reforms and due process protections announced today deserve the attention and consideration of the House of Representatives. They offer innocent property owners a fair chance of prevailing in their fight to keep their hard-earned property.
Heritage scholars have previously written about many of the inequities in the current civil asset forfeiture law, and the reforms introduced today in the DUE PROCESS Act will finally begin to rebalance a terribly skewed and unjust system.
