On Thursday, Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, and ranking member Patrick Leahy, D-Vt., introduced the “Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act,” or DUE PROCESS Act.
The reforms contained in Grassley’s bill would significantly alter the federal civil asset forfeiture landscape, dramatically improving the lot of innocent property owners caught up in a skewed and unfair forfeiture system.
Civil asset forfeiture laws target property, not people. As a result, no criminal charges or convictions are needed in civil forfeiture cases. Rather, the government need only prove by a preponderance of the evidence that there is a nexus between property and crime—that is, the seized cash, car, or home was somehow involved in, or derived from, criminal activity.
Once this low burden has been met, it becomes the responsibility of the owner to effectively prove his own innocence. If he cannot afford an attorney, he must do so without legal representation.
It is fair to characterize civil forfeiture as a system stacked against innocent owners in every meaningful sense, resulting in a large and growing number of property owners who report having had their bank accounts emptied or their vehicles seized based on little, if any, actual evidence of criminality.
The DUE PROCESS Act contains a number of provisions designed to reform and improve the most odious aspects of modern civil forfeiture law, including:
- Raising the standard of proof from a “preponderance of the evidence” to the much higher “clear and convincing” standard.
- Shifting the burden of proof from the innocent owner to the government, where it belongs.
- Guaranteeing indigent defense for property owners.
- Improving transparency through mandatory reporting requirements, including, for the first time, a requirement that agencies account for their decisions in the normally opaque administrative forfeiture process, and regular and thorough auditing of federal forfeiture activity.
Last month, the bipartisan leadership of the House Judiciary Committee introduced an identical bill, which sailed through the markup process and was reported out of committee favorably. With the DUE PROCESS Act now being debated in both chambers of Congress, the odds are better than ever that much needed reforms to federal civil forfeiture law will finally be enacted.
Unfortunately, while the DUE PROCESS Act contains many of the procedural reforms that The Heritage Foundation and a broad coalition of organizations have called for in our recent Meese Center report, “Arresting Your Property,” it does not tackle two of the most perverse aspects of forfeiture law: the financial incentives that underlie modern civil forfeiture practices and the profit-sharing programs known as “equitable sharing.”
Under federal law, 100 percent of the proceeds of successful forfeitures are retained by the federal law enforcement organization that executed the seizure. This money is available to be spent by these agencies without congressional oversight, meaning they can—and do—self-finance.
This profiteering incentive is extended to state and local agencies through programs administered by the Justice and Treasury departments known as “equitable sharing,” which allow property seized at the state and local level to be transferred to federal authorities for forfeiture under federal law. The feds then return up to 80 percent of the resulting revenues to the originating agency.
Thus, federal law provides every law enforcement agency in the country with a direct financial incentive to seize cash and property—sometimes at the expense of investigating, arresting, and prosecuting actual criminals—and simultaneously encourages state and local agencies to circumvent state laws that are more protective of property rights or restrictive as to how forfeiture proceeds may be spent than the federal standard.
The question of law enforcement agencies retaining assets has nothing to do with the propriety of the seizure; even if a sum of seized money really is drug money, it should go to the general fund. Law enforcement authorities have a difficult and dangerous job to do, and should be adequately, indeed generously, funded.
Nonetheless, depositing forfeited funds into the general treasury, to be allocated under the normal appropriations process, would eliminate the financial incentives to engage in dubious forfeiture practices, provide for greater oversight and accountability, and allow us to hold our elected officials accountable for addressing competing priorities.
Nonetheless, the DUE PROCESS Act would, if passed, represent a significant improvement over current federal standards and practices. It would reduce the odds of innocent owners having their property unjustly seized and forfeited, while still leaving the authorities plenty of tools and leeway to strip criminals of their ill-gotten gains and facilitating property.
After decades of expanding the reach and scope of civil forfeiture—today there are over 400 federal laws and countless state laws authorizing the seizure of property—many states have started reversing course, passing legislation to rein in a system that has become too abuse-prone and too indifferent to the actual guilt or innocence of the individual whose property is on the line.
Now, thanks to the efforts of Grassley and his counterparts in the House, Congress appears poised to take a critical first step toward rebalancing the nation’s civil forfeiture laws.