Rand Paul Introduces Bill To Abolish “Nonjudicial” Civil Forfeiture
(Source: forbes.com)

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(Original link: forbes.com)

Amid the surge of interest in police reform following the killing of George Floyd, Sen. Rand Paul (R-KY) reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act last week, which would enact a sweeping overhaul of federal civil forfeiture laws. Among its many critical reforms, the FAIR Act (S. 4074) would redress many of the problems with civil forfeiture and abolish its most abusive form.
Under “nonjudicial” or “administrative” civil forfeiture, not only can the federal government confiscate property without filing criminal charges, owners can permanently lose their property without a judge ever hearing their case. Instead of impartial judicial review, the fate of a seized property is decided by the seizing agency itself. Worse, agencies have a direct financial incentive to forfeit property: Under federal law, they can keep up to 100% of the forfeiture proceeds.
A wide swath of property valued at less than $500,000 can be forfeited administratively, including bank accounts, cash, cryptocurrency, art, antiques, furniture, and jewelry, as well as any vehicle, boat, or aircraft. As a result, unless an owner swiftly challenges a seizure, administrative forfeiture is typically the default process on the federal level. And since hiring an attorney to fight back in court often costs more than what the seized property is worth, many owners are forced to walk away.
“The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime,” Sen. Paul said in a statement . “The FAIR Act will uphold the Fifth Amendment and ensure government agencies no longer profit from taking American citizens’ property without due process. It will guard against abuse while maintaining the ability of courts to order the surrender of proceeds of crime.”
The U.S. Department of Justice has defended nonjudicial civil forfeiture as “a useful tool because it allows the government to avoid burdening the courts.” In fact, according to the Department’s Asset Forfeiture Policy Manual , “administrative forfeiture should be pursued wherever possible/practical.”
Given the DOJ’s preference for nonjudicial forfeiture and its lack of safeguards, it should come as no surprise then that the overwhelming majority of federal forfeiture cases are administrative. A report by the Institute for Justice found that more than 76% of all forfeitures conducted by the Justice Department were nonjudicial civil forfeitures. In contrast, criminal forfeiture, which occurs only after the owner has been convicted in court, accounted for just 13% of all DOJ forfeitures.
For perspective on the sheer scope and scale of nonjudicial civil forfeiture, consider a recent review by the Justice Department’s Inspector General. Between fiscal 2007 and 2016, a staggering 65,000 cash seizures worth a collective $3.2 billion were forfeited administratively by the DEA. Yet during that same period, the DEA returned a mere $153 million across 6,724 cases.
For decades, law enforcement has allowed a profit incentive to distort their tactics and deny due process to the citizens they are supposed to serve. By enacting the FAIR Act, Congress could curtail forfeiture, one of the most abused powers of the government, which in turn would help restore trust in law enforcement and improve relations between the public and the police. Although Sen. Paul reintroduced the FAIR Act as a standalone bill, he also aims to offer it as an amendment to whatever police reform legislation the Senate considers (if any).
“While we certainly want to ensure that law enforcement has the tools they need to fight crime, the federal government should not be wrongfully taking our citizens’ private property and denying them due process under the law,” said Sen. Mike Lee (R-UT), who also cosponsored the bill. “The FAIR Act provides some much-needed protections for Americans’ Fifth Amendment rights.”
Under the FAIR Act, “no federal seizing agency may conduct nonjudicial forfeitures” or “start a forfeiture without judicial involvement.” In addition to eliminating nonjudicial civil forfeiture, the FAIR Act would greatly strengthen due protections for the civil forfeiture cases that actually involve judicial oversight (which currently account for just over 10% of the DOJ’s forfeiture activity). The bill would raise the standard of proof on the government, rightfully place the burden of proof on the government to show that owners knew about the illegal use of their property, and would guarantee the right to counsel to owners who can’t afford an attorney.
To prevent agencies from padding their budgets with what they seize, the FAIR Act would eliminate the perverse incentives that motivate civil forfeiture by redirecting forfeiture proceeds to the Treasury’s General Fund. Moreover, the bill would end the “equitable sharing” program, which has funneled nearly $5.9 billion in forfeiture funding to state and local agencies since 2000. Ac...