Four House members on both sides of the aisle today are pushing forward legislation to reform the federal rules for civil asset forfeiture.
Civil asset forfeiture is the process by which law enforcement agencies and prosecutors are able to seize and keep property and assets from people based on the suspicion that it is connected with crime. The system is prone to abuse because police in a "civil" system do not have to prove that a suspect is guilty of a crime or even charge them with a crime. And because it's a "civil" procedure instead of a criminal process, those who get caught up in it often are not guaranteed a lawyer to help them resist, and the government has a lower burden of proof to win its case.
There have been many efforts to reform asset forfeiture on the state level, but there's a snag—the Department of Justice's "equitable sharing" asset forfeiture program often gives local law enforcement agencies a loophole around tighter state-level regulations. So in many cases, state level reforms are not enough. There need to be changes to the federal rules as well.
That's where Rep. Jim Sensenbrenner (R-Wis.), House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Rep. John Conyers (D-Mich.), and Rep. Sheila Jackson Lee (D-Texas), step in. They have introduced the DUE PROCESS Act to make it harder for federal officials to seize property.
Yes, "DUE PROCESS" here is an acronym, standing in for the "Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act of 2016." It does not, unfortunately, eliminate civil forfeiture entirely and require convictions. It does make it much harder for civil forfeiture to be used and gives citizens more opportunities to defend themselves.
In a statement announcing the bill's introduction, Sensenbrenner says, "Forfeiture is a critical tool in the fight against crime, but it is also vulnerable to abuse. The DUE PROCESS Act, among other things, will increase transparency and add protections for innocent property owners, including the opportunity to contest seizures and regain illegally seized property immediately. Reform to the current federal forfeiture laws is necessary to curb abuse, restore confidence in law enforcement, and help citizens protect their property rights."
The Institute for Justice, which fights against civil forfeiture abuse across the country, put out a statement calling the bill a "bold step in the right direction to remedy some of the injustices of civil forfeiture." They also provide a helpful bulletpoint list of what the bill actually does that I'm just going to cut and paste:
- Provides legal representation for those who cannot afford it in administrative and judicial proceedings;
- Raises the burden of proof necessary to forfeit property from a mere "preponderance of evidence"—informally understood as being "more likely than not" connected to a crime—to "clear and convincing"—the highest standard used in civil proceedings;
- Restores the presumption of innocence by requiring the government to prove that owners knew about or consented to the criminal use of their property;
- Establishes new timelines that better protect property owners' due process rights;
- Provides a hearing for defendants to contest the pretrial restraint of property needed to pay for counsel;
- Allows the recovery of attorney's fees if a case is settled;
- Increases oversight and transparency by requiring an annual audit of federal civil forfeitures and creating two publically available databases; and
- Limits forfeiture for structuring only when funds are derived from an illegal source or used to conceal illegal activity.
Despite the praise, the Institute for Justice is calling for the bill to be amended to completely eliminate the DOJ's Equitable Sharing Program.
Read more from Reason on asset forfeiture abuses here.