Will Civil Forfeiture Reform Actually Happen This Time?

It passed the House judiciary committee by a unanimous 26-0 vote. For the math challenged, that means both the Republican majority and Democrat minority on the committee agreed. With each other. But the most shocking part is that it was about in rem asset forfeiture, the debacle born in the heat of the crack epidemic and mafia war to, as its marketing spiel went, “take the profit out of crime.

Back then, the promise was that it would only be used against mobsters and drug kingpins, so ordinary folk wouldn’t get too bothered by its near-total lack of due process and its presumption that assets were criminal until proven otherwise. Since then, we’ve come to appreciate that it’s used against anyone with loot to snatch, which then inures to the benefit of the thieving cops who snatch it.

But now that a bipartisan effort in this time when bipartisan is a dirty word has moved reforms forward, could it actually happen?

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 [].

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.

Seized assets either went to (or were split with under the federal sharing program that allowed cops to pick the easier route, state or federal, to handle the forfeiture) the coffers of police departments to make their job and work/life balance a lot more pleasant. Whether it was to buy new vests, or have a cool Ferrari to cruise around in, or throw a party, they had the money. By eliminating the federal sharing program and redirecting the money into the general fund, there was no benefit for the seizing cops. Without the upside, there was no incentive to overreach, as had become the ordinary course of business in many departments. But there’s more.

Nearly all federal forfeitures are “administrative,” meaning they are completed without judicial oversight. Instead, the agency that wants to keep someone’s property decides whether it can—an obvious conflict of interest that the FAIR Act would eliminate by requiring that federal courts approve forfeitures.

The bill would eliminate administrative forfeiture, and require all forfeitures to go before a judge, who would then decide whether there was “clear and convincing evidence,” rather than preponderance.

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.

These are significant, and deeply welcome, reforms, as there have been myriad tales of horrific forfeiture abuse, and far more tales that never make it to the radar of small time, penny ante, abuse, where police seize older, low value cars, or small amounts of cash, that simply fell far below the value of retaining counsel to seek its return.

As Jacob Sullum notes, the reforms don’t go so far as to require a conviction before seizing assets.

The most straightforward way to stop forfeiture abuse would be to require a criminal conviction, a step that several states have taken. The FAIR Act does not go that far, and it would still allow seizures based on “probable cause,” a minimal standard that in practice often amounts to nothing more than a vague, unsubstantiated allegation.

Moreover, forfeiture is predicated on different rationales, one being the proceeds, or substitute proceeds, of a crime, and the other been the “instrumentality” of a crime. It’s one thing to strip a person convicted of a crime of the actual (meaning not imaginary as is commonly used in federal court loss calculations) profits obtained, but should his family lose their car or their house on top of the conviction because it was somehow used in the process?

While the FAIR bill may not fix every failing of civil asset forfeiture, it would be a huge step forward in undoing the insanity embraced by Congress and the public back in the days when the only people being abused by forfeiture were despised anyway. Until the law slid down the slippery slope to ordinary people, as we always knew it would. That it passed in committee unanimously is a huge indication that reform may finally be at hand. Maybe this time.

6 thoughts on “Will Civil Forfeiture Reform Actually Happen This Time?

  1. Carlyle Moulton

    Humans tend to follow positive incentives.

    Just as incentivising good behaviour is more effective than punishing bad behaviour, incentivising what is in fact theft results in large amounts of it.

    I believe that in 17th century Europe witch finders were rewarded with the property of the witches that they burned, same incentive at work and the laws against mind altering substances other than alcohol and nicotine are today’s replacement for the laws against witchcraft.

  2. Hal

    Were it not for the “war on drugs” would asset forfeiture laws ever have passed judicial review?

    1. Syme

      I’ve speculated one approach is to take away the incentive. Require all confiscated assets to go the corresponding public defenders program.

      Will the cops want to do that paperwork to enrichen their hated enemies, defense counsel?

  3. BCP

    Bipartisan legislation that clearly analyzed the points in the system causing the problem and then crafted thoughtful changes specifically aimed at those problem points. Sorry, Scott, that doesn’t happen. You made this story up.

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