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.

Comments

[Krychek_2]

Whatever may be the theoretical arguments in favor of civil asset forfeiture, the government has proven it simply can’t be trusted to carry it out in a just way. I would support federal legislation forbidding its use by the feds and by the states absent an actual criminal conviction.

[bevis the lumberjack]

I’ll go further. Anyone in Congress that votes against this should be voted out of office at the next election. Put together a pamphlet of all the abuses and point out that the incumbent favors government stealing assets from innocent citizens. Carpet bomb their district/state.

I’ve seen guerilla tactics like that work once before and lead to a formerly popular incumbent getting crushed. Ended his political career.

[Chip Watkins]

The best that can be said about this bill is that half a loaf is better than none. Civil forfeiture should be illegal unless the owner is charged (not just arrested) with a crime, prompt judicial review is afforded, and the mere possession or storage of unusually large amounts of cash is not a dispositive factor allowing the government to keep it. The FAIR Act should not be the last battle in this war.

[VinniUSMC]

Civil forfeiture should be illegal unless the owner is charged (not just arrested) with a crime

I hope you mean convicted of a crime.

[Rossami]

With two corrections, I agree.
1. Vinni is right that the owner should be convicted, not merely arrested or charged. But at that point, it's not civil forfeiture anymore - it's merely another aspect of your sentence.
2. Civil forfeiture still has a legitimate role where the owner is unknown, likely unknowable, and the thing being confiscated is inherently illegal.

Scenario 2 is the original justification (and in my opinion, the only valid justficiation) for CAF. During the Founding, it was primarily used to seize contraband when a smuggler who was about to be caught simply abandoned the ship and cargo to slip off into the darkness, The cargo is self-evidently contraband and the ship cannot be allowed to drift as a hazard in the shipping lanes but no owner will come forward because doing so would be an admission to the crime of smuggling.

For a more modern example, consider an interrupted drug deal that ends with a kilo of heroin in the middle of the street. No sane person is going to step forward to claim the heroin. Ownership is unknown and unknowable. Despite that, the state needs some legal basis to seize, condemn and destroy the heroin. CAF is that legal basis.

[Dilan Esper]

I agree with both your points.

[MaverickNH]

I would ask what percentage of asset forfeitures are contested as unjustified by connection to criminal activity of the owner but I expect there’s no reporting requirement.

[Brett Bellmore]

The usual bond requirement just to challenge the forfeiture is a high enough threshold to prevent most challenges, isn't it? They take your money, then require you to put up a bond to even challenge their taking it.

[Savagely Average]

Exactly. I’ve heard defenders of forfeiture argue that the large number of unchallenged forfeitures indicates most are legitimate. Which is nonsense given that no sane person’s going to post a bond and spend $10,000 in legal fees to get back $5000 in seized property.

[TheAmazingEmu]

Also, in cases associated with criminal charges, many of the defendants are incarcerated, obviously currently unemployed, just had a large amount of revenue taken from them, and required to defend the cases pro se from inside the jail. They're just given some legal paperwork by the jail itself and then there is a default when they fail to respond to the pleadings within a certain time period.

[Brett Bellmore]

It still falls short for the reasons you articulate. The whole basis of civil forfeiture, that it's an action against the property, not the owner of the property, is the sort of thing that clarifies that legal "fictions" are often just legal lies.

As I understand it, the original basis for civil forfeiture was the seizure of contraband which nobody would admit to owning. (Because admitting to owning it would be confessing a crime.) The whole concept has no application to non-contraband and/or property where the owner is identifiable.

Really, what ought to happen is that the Supreme court declare the whole thing unconstitutional as a violation of due process. But they're more than a bit cowardly.

The proposed bill is at least a baby step in the right direction, anyway.

[Tom for equal rights]

Brett's comment on the SC being too cowardly is spot on

5A is pretty clear that taking of property requires due process. similar departure from 5A in Gamble

5A - "....or shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..."

[SRG]

the Supreme court declare the whole thing unconstitutional

No doubt the Supreme Court majority would say that civil asset forfeiture was part of the history and tradition of this country.

[Brett Bellmore]

I know you're being sarcastic, but an actual history and tradition analysis Bruen style would go very badly for modern civil forfeiture; In the relevant period it certainly was a thing, but only for contraband without an identifiable owner.

[Bill Poser]

I don't think that's the reason it has persisted in spite of its obvious unfairness. The problem is that it is technically a civil procedure, not criminal, and that the target is not the owner but the property itself. There is a long tradition of suits in rem, some of which are arguably fair and proper. Consider, for example, actions to confiscate property, whose owner may be unknown, where the property is considered improper for anyone other than the government or other strictly regulated entities to possess, e.g. plutonium or sarin. The classical use of actions in rem is, I believe, for confiscation of contraband.

[Tom for equal rights]

Speaking of tradition - The british were into confiscating guns and arms - which was one of the reasons the right to keep and bear arms was written in the bill of rights.

Similarly with the confiscation of property - one of the reasons "not to be deprived of life liberty or property without due process " was written in 5A

[OtisAH]

“But, despite this broad support, asset forfeiture reform remains politically difficult, because law enforcement agencies are loath to give up this source of income.”

It’s not suppose to be a source of income for law enforcement agencies anyway.

[Archibald Tuttle]

Not perfect, but a very welcome bill. Let's hope that it passes.

Adding to the problem is an apparent surge in check fraud. Even cashiers checks can no longer be trusted. To protect themselves, sellers are insisting on cash for purchases of vehicles, equipment or businesses. So buyers must travel carrying cash. Often, it is their life savings.

Ominously a new Michigan law tightening asset forfeiture made an exception to allow continued forfeiture at airports. That seems like a pretty transparent bid to steal the money of any and all people traveling with large sums cash.