Congress Considers Bipartisan Bill Curbing Asset Forfeiture

The FAIR Act would be a significant step forward. It just passed the House Judiciary Committee on a unanimous 26-0 vote.

(Reason)

Earlier today, the House Judiciary Committee passed the FAIR Act on a 26-0 vote. We rarely see such unanimity in this era of partisan polarization! Reason's Jacob Sullum has a helpful summary of how this bill would reform the federal asset forfeiture system:

Two years ago, the FBI seized the contents of safe deposit boxes used by hundreds of people at U.S. Private Vaults, a Beverly Hills business that offered secure storage for cash and other valuables. One of those dismayed customers was Linda Martin, a Los Angeles resident whose box contained $40,200 that she and her husband had saved for a deposit on a new home.

Martin, whose money was seized without any evidence that she was involved in illegal activity, is still trying to get it back. Her predicament is emblematic of the injustice wrought by civil asset forfeiture, a system of legalized larceny that allows law enforcement agencies to pad their budgets by confiscating allegedly crime-tainted property without charging, let alone convicting, the owner.

A bill that has attracted bipartisan support in Congress aims to address that problem. The Fifth Amendment Integrity Restoration (FAIR) Act includes several substantial reforms that would make it harder for the federal government to take assets from innocent people like Martin.

The FAIR Act, which Reps. Tim Walberg (R‒Mich.) and Jamie Raskin (D‒Md.) reintroduced in March, would eliminate the perverse financial incentive that encourages agencies like the FBI to seize first and ask questions later (if ever). It would assign forfeiture proceeds to the general fund instead of letting the seizing agency keep the loot.

The bill also would eliminate the "equitable sharing" program that lets state and local agencies keep up to 80 percent of the revenue from forfeitures they initiate. By authorizing confiscation under federal law, that program invites money-hungry cops to circumvent state reforms that make forfeiture harder or less profitable….

To keep seized property under current federal law, the government needs to prove it is more likely than not that it was derived from or facilitated a crime. The FAIR Act raises that standard to "clear and convincing evidence," and it enhances protections for innocent owners: When another person uses someone's property to commit a crime, the government would have the burden of proving that the owner "knowingly consented or was willfully blind" to that unlawful use.

The FAIR Act would also abolish "administrative" forfeitures ordered by federal bureaucrats. Only federal judges would have the power to order the forfeiture of property.

Asset forfeiture abuse is a serious problem in both the federal law enforcement system and in many states. It often enables law enforcement agencies to seize citizens' property without convicting them of a crime or even charging them. Then, procedural barriers make it difficult or impossible for the owners to reclaim their assets, even if they are completely innocent. I go over these issues in more detail here.

The Supreme Court's 2019 ruling in Timbs v. United States, imposes some constitutional constraints on asset forfeiture. But it has a variety of limitations, and left several key issues for lower courts to resolve.

The "equitable sharing" program mentioned by Sullum allows state and local agencies to circumvent state-law limitations on asset forfeiture by working with the feds, and then sharing the loot. The system is an egregious attack on both federalism and property rights. It was curbed by Obama Administration Attorney General Eric Holder, but then reinstated by Trump's first AG, Jeff Sessions. Biden Attorney General Merrick Garland has  - so far, at least - perpetuated Sessions' scheme to Make Asset Forfeiture Great Again.

For reasons Sullum notes, the FAIR Act would not completely put an end to unjust federal asset forfeiture. If it were up to me, I would go even further than Sullum recommends, and simply abolish asset forfeiture entirely - even for those convicted of crimes. There is no good reason to add property confiscation to ordinary criminal penalties, and also no reason to punish more harshly a criminal who used his own car to commit an illegal transaction as opposed to taking the subway or the bus. Law enforcement should be able to return stolen property, but not confiscate suspects' own property as a kind of extra punishment for their possible crimes.

Despite some limitations, the FAIR Act would be a major improvement over the current federal system. And the abolition of the equitable sharing program would bolster reform efforts at the state level,  as well.

The overwhelming vote in the Judiciary Committee is a good sign. Libertarians, liberals, and many conservatives are united on this issue, which combines government abuse of property rights with violations of due process rights and disproportionate effects on the poor and racial minorities.

But it is too early to celebrate. Rep. Raskin, co-sponsor of this act (best known for being the lead impeachment manager on Donald Trump's second impeachment), is among those who have been here before. In 2017, he co-sponsored similar legislation (with libertarian Rep. Justin Amash, among others) that passed the House by a unanimous vote, only to have it die in the Senate. It's a rare issue that unites Amash, Raskin, the ACLU, the Institute for Justice and many others. Raskin deserves credit for sticking with this cause over many years.

But, despite this broad support, asset forfeiture reform remains politically difficult, because law enforcement agencies are loath to give up this source of income. In some years, federal law enforcement alone seizes more property through asset forfeiture than burglars around the country manage to steal. Hopefully, the Senate won't block asset forfeiture reform yet again.