Legislation Eases Burden of Contesting a Government Forfeiture and Raises Government’s Burden to Keep Property; Advocates Caution that the Bill Will Not End Policing-for-Profit
Washington, D.C. –(ENEWSPF)–May 26, 2016. Yesterday, the U.S. House Committee on the Judiciary unanimously approved asset forfeiture reform legislation. Known as the DUE PROCESS Act (H.R. 5283) and sponsored by Crime Subcommittee Chairman Rep. F. James Sensenbrenner (R-WI), House Judiciary Committee Chairman Bob Goodlatte (R-VA), Ranking Member John Conyers (D-MI), Crime Subcommittee Ranking Member Sheila Jackson Lee (D-TX), Representative Tim Walberg (R-MI), Representative Peter Roskam (R-IL) and others, the bill makes important procedural reforms that will help give property owners fighting a federal civil asset forfeiture action greater leverage to contest a government seizure and increases the federal government’s burden of proof in civil forfeiture proceedings. The DUE PROCESS Act, however, currently does not address the “policing for profit” incentive issue.
“For decades police have used civil asset forfeiture to seize cash and other property from the public without any need to prove the person was involved in a crime,” said Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “A major overhaul of federal civil asset forfeiture laws has been long overdue, and it is good to see House leaders on both sides of the aisle taking a critical first step toward helping innocent people get their wrongfully seized property back from the government,” said Smith.
The ‘‘Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act of 2016” provides new protections and strengthens due process rights for property owners who are faced with the daunting task of contesting a federal civil forfeiture. The DUE PROCESS Act specifies a property owner’s right to a prompt initial hearing before a judge to challenge a seizure or claim undue hardship. The legislation also provides a right to legal representation to indigent property owners at all civil forfeiture proceedings and protects a defendant’s right to hire counsel of their choice. The legislation also requires the government to comply with certain administrative timeframes and notification procedures that benefit property owners, as well as provide transparency of federal forfeiture proceedings. Crucially, the DUE PROCESS Act also increases the federal government’s burden of proof in civil forfeiture proceedings. Currently, federal law allows for preponderance of the evidence, which is the lowest standard of proof in a court of law. The DUE PROCESS Act would require clear and convincing evidence in civil asset forfeiture cases before the government can permanently take property. Advocates highlight, however, that the DUE PROCESS Act, as currently formulated, does not address the warrantless government seizures that will almost certainly continue unchecked until the profit incentives to pursue civil forfeitures are also addressed through legislation.
“We urge House and Senate leadership in Congress to pass comprehensive asset forfeiture reform this year,” Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “Congress should take reform a step further and leverage the enormous bipartisan and politically diverse support for eliminating federal laws and programs that have incentivized police to profit from the seizure of cash and other property from innocent people,” said Smith.
Advocates have urged congressional leaders to eliminate the Department of Justice’s Equitable Sharing Program. This federal program enables state and local law enforcement agencies to take property from people not convicted, charged, or even arrested of any criminal wrongdoing, and transfer the seized property to the Department of Justice in circumvention of the laws of the state in which the seizure occurred. As much as 80 percent of the proceeds from forfeited property are returned by this federal program to state and local law enforcement for their own operations, which creates a financial incentive for law enforcement to seize property. A growing number of states are reforming their forfeiture laws in the interest of protecting the rights of property owners and eliminating perverse incentives like those perpetuated by the Equitable Sharing Program. Advocates have also called on Congress to require the deposit of all federal forfeiture proceeds into the Department of Treasury’s general fund.
Federal civil asset forfeiture law allows the government to seize and keep cash, cars, real estate, and any other property from persons without any proof of criminal wrongdoing. Civil asset forfeiture begins when a federal, state or local law enforcement agency seizes property during a traffic stop or other encounter and takes legal action against the property seized from its owner by alleging that the seized property is connected in some way to illegal drugs or other criminal activity. Property owners do not need to be charged or convicted of a crime in order for law enforcement to seize property. In the 1970s and 1980s, Congress expanded to use of civil asset forfeiture by federal, state and local law enforcement in the name of fighting the war on drugs. Numerous law enforcement agencies took advantage of these expanded policies to profit from the confiscation of cash and other property from people during roadside stops and other interactions.
Yesterday’s committee action in the House builds upon momentum in Washington for major civil asset forfeiture reform. Last year, Senator Rand Paul (R-KY) in the Senate and Rep. Tim Walberg (R-MI) in the House introduced the Fifth Amendment Integrity Restoration (FAIR) Act. The FAIR Act eliminates policing for profit and increases the federal government’s burden of proof in civil forfeiture proceedings. In January 2015, then-Attorney General Eric Holder issued an order establishing a new Department of Justice policy prohibiting federal agencies from accepting certain civil asset forfeiture assets seized by state and local law enforcement agencies. Groups that support reform come from across the political spectrum, ranging from the Center for American Progress and The Leadership Conference on Civil and Human Rights to Americans for Tax Reform and FreedomWorks.
Related Material:
Huffington Post
Momentum Builds Against Civil Asset Forfeiture Abuses by Law Enforcement, By: Grant Smith Deputy Director of National Affairs, Drug Policy Action, March 21, 2016
http://www.huffingtonpost.com/grantsmith/civil-asset-forfeiture-abuse_b_9517394.html?1458583593
Imagine being pulled over on the highway for a minor traffic violation. The next thing you know the police officer that stopped you asks you if you have any cash or other valuables in your vehicle and begins searching your car. The officer finds some cash or something else valuable and informs you they are taking your property because they think it was involved in criminal activity. Your property is taken but there is no judge or courtroom where you can plead your property’s “innocence.”
The only option available to fighting the seizure of your property is a complex paperwork trail, a battle where the odds of getting your property back are severely stacked against you and hiring a specialized attorney to help you might cost far more than the value of the property taken from you. Most seized property is then sold and some proportion of the profits from its sale are kept by the law enforcement agencies that made the seizure.
In many states this scenario is completely legal and it happens all the time. All of this happens on a regular basis across the country thanks to civil asset forfeiture laws. Low income people are believed to be disproportionately impacted by law enforcement taking advantage of these laws because they are least likely to have the means to fight a property seizure. African Americans and other communities of color are also believed to be disproportionately impacted in part because these populations are already disproportionately stopped by law enforcement.
In polling conducted by Drug Policy Action in the states of Florida and Utah on March 7th and 8th, an average of 71 percent of registered voters had never heard of civil asset forfeiture laws. After hearing a description of these laws, however, more than 80 percent of registered voters in both states taking property without a conviction. Support for reform was overwhelming regardless of party affiliation, age, gender or race. An overwhelming majority of polled voters from both political parties also opposed the idea that police should be able to keep the profits from the property they seize.
The Institute for Justice has long documented the growing reliance by law enforcement on the use of civil asset forfeiture to supplement their budgets at the expense of due process and property rights. Civil asset forfeitures pull in hundreds of millions of dollars’ worth of property every year for the law enforcement agencies that make the property seizures. However, little is known about the victims of these seizures and the circumstances that might explain why victims are stopped by police in the first place.
In the above mentioned poll, Drug Policy Action asked voters in Florida and Utah if a police officer had ever taken property from them or someone they knew without being charged with a crime. Roughly 1 out of 12 surveyed voters reported having this experience or knowing someone who did, and most of these experiences happened during a traffic stop.
Poll respondents who self-reported as a person of color reported having this experience or knowing someone who did at a greater rate than white respondents. In Florida, a whopping 23% of respondents who reported having this experience or knowing someone who did were Hispanic, and 71% of Hispanic respondents reported that the experience happened during a traffic stop.
Luckily there is growing momentum behind reforming civil asset forfeiture laws in state houses across the country. In Florida the legislature recently sent a reform bill to Florida Gov. Rick Scott’s desk for his signature. Lawmakers in California, Alaska, Hawaii, Ohio, Nebraska, Maryland and elsewhere are considering bills that reform civil asset forfeiture laws. Last year, New Mexico passed a sweeping bill that gives the state some of the strongest protections against wrongful seizures in the country.
The momentum behind reforming civil asset forfeiture laws at the state level hasn’t quite taken root in Washington, however. Federal civil asset forfeiture laws are also in dire need of reform. Hard won state-level reforms must be protected. Congress has a duty to protect the people from the harm these laws cause and address the perverse incentives that perpetuate the property seizures.
Civil asset forfeiture reform also deserves to be a campaign issue. In fact, 66 percent of registered voters in both states polled by Drug Policy Action said they would be more likely to support a candidate for president who took a position in favor of requiring a criminal conviction before property can be seized.
Voters clearly oppose the exploitation of civil asset forfeiture laws by law enforcement. It’s time for lawmakers on Capitol Hill and candidates running for our nation’s highest office to address this issue.
Grant Smith is the deputy director of national affairs with Drug Policy Action.
Source: http://www.drugpolicy.org
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