On Thursday, Sen. Rand Pau (R-Ky) and Rep. Tim Walberg (R-Mich.) reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act in Congress. The bill, if passed, would be the most sweeping reform of abuse-prone federal civil forfeiture law since the 1980s.
Back then, Congress turned to civil forfeiture laws to empower law enforcement authorities to seize and forfeit the ill-gotten gains of drug kingpins, criminal organizations, and money launderers, as well as the property they used to commit their crimes. To encourage the use of this newly enhanced tool, Congress created the Assets Forfeiture Fund and allowed federal law enforcement agencies to keep the proceeds of successful forfeitures.
The result? An exponential increase in forfeiture activities. In 1985, the first year the fund existed, it brought in just $27 million. In 2012, the value of forfeited assets was $4.3 billion. Today, more than 400 federal laws authorize the seizure of cash, cars, and homes for a range of alleged offenses, and allow forfeiture proceeds to be divided with state and local agencies through Equitable Sharing programs administered by the Treasury and Justice Departments.
Local, state, and federal lawmakers control none of this vast sum of money. Law enforcement agencies can spend it all outside normal appropriations processes.
The resulting lack of accountability and perverse financial incentive are troubling enough, but civil forfeiture laws go a step further. Innocent property owners quickly discover that the deck is stacked against them from the start. Prosecutors need only demonstrate that property is forfeitable by a preponderance of the evidence. To rebut this, property owners must essentially prove they are innocent, a complete reversal of America’s traditional presumption of innocence until proven guilty.
Most cases never get as far as a courtroom, though, and end instead in so-called administrative forfeitures. In these instances, the law enforcement agency that seized the property – and stands to gain financially by keeping it – plays the role of judge, prosecutor, and jury all in one.
Sometimes these cases make it no further than the side of the road, as law enforcement officials trade freedom for any cash that “suspects” are carrying. In a recent statement questioning the constitutionality of civil forfeiture, Justice Clarence Thomas reminded readers of the terrible systemic abuses in Tenaha, Texas. For three years, innocent, primarily minority drivers were threatened with arrest unless they voluntarily forfeited their money and valuables on the spot.
All the while, some officials have been caught letting likely criminals go free in exchange for their cash. One Oklahoma sheriff now faces criminal charges for releasing a meth dealer (who was later convicted in Kansas) on condition that he voluntarily forfeit $10,000.
Clearly, civil forfeiture law is in need of reform, and the FAIR Act proposes sweeping changes that match those called for by The Heritage Foundation. Among other things, the bill provides for indigent defense in all forfeiture cases. It shifts the burden of proof squarely to the government, and requires that prosecutors make their case by “clear and convincing evidence,” a much higher bar than the preponderance standard, which mirrors state forfeiture reforms throughout the country.
Crucially, the FAIR Act would also eliminate the forfeiture financial incentive altogether. Federal forfeiture proceeds would go directly to the general fund to be dispersed by Congress, and the equitable sharing program would be abolished. Federal agencies would no longer be able to seize their way to higher budgets, and state and local officials would no longer be incentivized to bypass more restrictive state forfeiture laws.
Paul and Walberg first introduced the FAIR Act in 2014. At the time, civil forfeiture was something few people had heard of, and there appeared to be little appetite for reform. But in the years since, dozens of state legislatures have reined in their abuse-prone forfeiture statutes, and last year Congress advanced several forfeiture-reform bills, though none has yet made it to the president’s desk.
Poll after poll reveals broad public support for stronger protections against unjust and baseless seizures. Some even show a remarkably high percentage of Americans have been directly affected by forfeiture.
We can no longer afford to ignore the problem. Congress can make 2017 the year of forfeiture reform.
This piece originally appeared in The Hill on 3/17/17