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Appropriations Bill Could Defund the Justice Department's Effort to Take Property Without Due Process

08/29/2017

The House of Representatives will consider the Make America Secure and Prosperous Appropriations Act, H.R. 3354. The bill consolidates the eight remaining appropriations measures for FY 2018, including Commerce, Justice, and Science (CJS) and Transportation and Housing and Urban Development (T-HUD). The House has already passed one consolidated appropriations bill, H.R. 3219, which authorized spending for the Department of Defense, the legislative branch, the military and veterans affairs, and energy and water.

Because eight different appropriations bills have been consolidated into this one bill, several hundred amendments have been filed with the House Rules Committee for consideration on the floor when H.R. 3354 is considered. FreedomWorks has more than 60 amendments on its list for possible key votes for or against. Not every amendment will be considered, as the House Rules Committee won't allow many amendments to reach the floor, either because the amendments aren't in order or because the member who sponsored the amendment isn't friendly with leadership.

One theme we noticed when going through the amendments was that there are several that would defund Attorney General Jeff Sessions' directive to ramp up the use of civil asset forfeiture.

For those unfamiliar with civil asset forfeiture, it is the process by which law enforcement can seize property and money believed to be connected to a crime and subject it forfeiture based on a low evidentiary standard. The background of federal civil asset forfeiture laws and the alarming use of these laws was covered in a FreedomWorks Foundation publication, From High Seas to Highway Robbery: How Civil Asset Forfeiture Became One of the Worst Forms of Government Overreach.

At the federal level, the evidentiary standard is a "preponderance of the evidence," which is tantamount to a coin flip to decide whether or not the seized property or cash is connected to illicit activity. Keep in mind that the person from whom the property is seized doesn't have to be arrested, charged with or convicted of a crime. The constitutionally protected right of due process is thrown out the window. In a denying a request for a Supreme Court hearing, Justice Clarance Thomas wrote, "This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses," adding that the poor and minorities are the ones who are often negatively impacted by forfeiture.

The directive from Attorney General Sessions undermines some thoughtful, albeit limited, administrative reforms during the previous administration, most notably the restrictions put in place on adoptive seizures. An adoptive seizure is when a federal agency adopts property or cash seized by a state or local law enforcement agency.

Now, in recent years, several states have adopted civil asset forfeiture reforms that increase evidentiary standards to "clear and convincing," which is the highest standard in civil court. Some states have even eliminated civil asset forfeiture. But even some states that have adopted protective reforms weren't able to close the federal loophole that allows for adoptive seizures. This allows state and local law enforcement to bypass protective state laws and allow the federal government to take over, where the process to reclaim seized property is complicated and costly.

Some members are using H.R. 3354 to take aim at Attorney General Sessions' directive to increase the use of civil asset forfeiture. Five amendments have been submitted to Division C—the section that authorizes appropriations for Commerce, Justice, and Science—to the House Rules Committee that would either defund the directive or prohibit the use of funds authorized by the bill from being used to facilitate adoptive seizures.

Amendment 46 to Division C: Submitted by Rep. Tim Walberg (R-Mich.), this amendment would prohibit the use of funds from being used to carry out Attorney General Sessions' directive. The problem with this amendment is there were some minor positive aspects to the otherwise terrible directive, such setting a minimum value of $10,000 before seized property or cash can be adopted, requiring more proof of criminal activity, and doubling the time required for the property owner to receive notice of their rights. Because the amendment would prohibit funding for the directive, it would prevent the positive reforms from being implemented.

Amendment 67 to Division C: Submitted by Rep. Jamie Raskin (D-Md.), the amendment is similar to Rep. Walberg's amendment. It would prohibit funds appropriated by the bill from being used to implement Attorney General Sessions' directive.

Amendment 70 to Division C: Submitted by Rep. Justin Amash (R-Mich.), this amendment would prohibit funds from being used to facilitate adoptive seizures of property or cash. The amendment references the directive from the previous administration, but it's tailored to address the specific activity, adoptive seizures, for prohibition. Presumably, it would leave the minor positive reforms in Attorney General Sessions' directive in place.

Amendment 87 to Division C: Submitted by Rep. Darrell Issa (R-Calif.), the amendment would reduce the appropriation for the Justice Department's Assets Forfeiture Fund by $10 million and increases funding by the same amount to the Debbie Smith DNA Backlog Grant Program, which deals with forensic kits in cases of sexual assault. The merits of the DNA program notwithstanding, the amendment doesn't directly address Attorney General Sessions' directive.

Amendment 127 to Division C: Submitted by Rep. Warren Davidson (R-Ohio), the amendment would prohibit the use of funds appropriated from being used for adoptive seizures. It's similar to Rep. Amash's amendment, but it isn't directly tied to a specific directive or order.

The submission of these amendments doesn't mean that any of them will receive a vote on the floor. It's likely, however, that if an amendment offered to prohibit the implementation of Attorney General Sessions' directive or to prohibit the use of funds to facilitate adoptive seizures was to be brought for a vote, it would pass. Whether or not that happens is entirely in the hands of the House Rules Committee.

Even with the passage of an amendment taking aim at Attorney General Sessions' directive, Congress has to address federal civil asset forfeiture laws. There is legislation that would reform these laws by protecting innocent property owners and restoring due process. FreedomWorks has already released letters of support for the Fifth Amendment Integrity Restoration Act, S. 642 and H.R. 1555, and the DUE PROCESS Act, H.R. 1795. Those bills are stalled in the respective committees of jurisdiction, and there is no indication when they may be marked up.