LEGISLATION has been introduced in Congress to reform civil asset forfeiture, a practice by which law enforcement agencies seize the property and assets of individuals with minimal due process.
The FAIR (Fifth Amendment Integrity Restoration) Act, introduced by Sen. Rand Paul of Kentucky and Rep. Tim Walberg of Michigan, seeks to shore up the rights of Americans facing civil asset forfeiture proceedings.
Under current practices, federal agencies, often in partnership with state and local police departments, may seize a person's cash, home or vehicle simply upon the suspicion that such assets were connected to criminal activity. One need not even be charged or convicted of a crime to have personal assets permanently seized.
All the government needs to do is meet the relatively low standard of a preponderance of the evidence to prevail in court, while innocent owners have the burden of trying to prove their innocence and bearing the costs of legally opposing government authorities.
According to the Institute for Justice, from 2001 to 2014, the forfeiture funds of the Department of Justice and Treasury Department took in nearly $29 billion. This provides financial incentive to both federal agencies and state and local partners, who get a cut of the money through "equitable sharing," to increasingly focus on cases with revenue-generating potential.
The Chicago Tribune reported in November that Illinois law enforcement confiscated more than $319 million in property and cash from people over the past decade, according to a study by the American Civil Liberties Union of Illinois and the Illinois Policy Institute. The study found the state's law enforcement agencies receive about $30 million in forfeited property each year.
Meanwhile, Missouri is one of a handful of states that mandates forfeiture money be used strictly for schools. However, a recent report by the Missouri State Auditor Nicole Galloway found that while police seized more than $6.2 million worth of property in 2016, less than $100,000 was transferred to the state to benefit public education. Auditors also reported that less than half of all seizures were accompanied by criminal charges.
The FAIR Act does a number of things to address the problems associated with civil asset forfeiture.
It removes the profit incentives involved by directing proceeds of federal civil asset forfeiture to the Treasury's General Fund to be used at the discretion of Congress, rather than federal agencies. Doing this also ends the practice of equitable sharing, thereby reducing the incentives of state and local law enforcement agencies to prioritize revenue-generation.
The current system puts the innocent at a disadvantage because they often lack the resources to take on the federal government. The FAIR Act seeks to restore the rights of innocent property owners, by requiring clear and convincing evidence of a person's guilt, rather than a mere preponderance of the evidence. It also provides indigent property owners counsel if they need it.
There should be a bipartisan effort in Congress to rein in the abuses of civil asset forfeiture.