Due Process Act Will Protect Innocent People from Government Overreach

Rep. Jim Sensenbrenner (R-Wis.) introduced legislation Wednesday that would reform federal civil asset forfeiture laws, offering key protections to innocent people whose property is seized by the government. The Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act (H.R. 5283), or Due Process Act, is the most significant, if not first, major reform of federal forfeiture laws since 2000, when Congress passed the Civil Asset Forfeiture Reform Act.

Civil asset forfeiture is a legal tool by which law enforcement agencies seize either tangible property or cash without ever arresting or charging, let alone convicting, someone of a crime. In federal forfeiture proceedings, the government can permanently seize the property or cash based on a low standard of evidence — a preponderance of the evidence, or a 51 percent likelihood that the information presented is true — and, in a perversion of justice, the burden of proof falls on the property owner. A legal fiction exists in forfeiture proceedings because the case is brought against the seized item, not an individual. The property owner bears the full cost of all legal fees, even if they cannot afford counsel, and is responsible for navigating the complicated and onerous process.

Previous efforts to reform federal civil asset forfeiture laws fell far short of offering meaningful protections to innocent property owners. In 2000, then-House Judiciary Committee Chairman Henry Hyde (R-Ill.) introduced the Civil Asset Forfeiture Reform Act, or CAFRA. As originally introduced, the bill would have raised the standard of evidence to "clear and convincing," the highest in civil court. Unfortunately, it was watered down during the legislative process, making the effort a missed opportunity. The value of seizures that were subjected to federal forfeiture subsequently exploded, from $313 million in 2000 to more than $1 billion in 2013.

Federal forfeiture laws have come under scrutiny due to innocent people being negatively affected by federal forfeiture laws. In the past year, FreedomWorks has shared many of these stories. It appears that Congress may be ready to act to reform federal forfeiture laws.

The Due Process Act, which boasts bipartisan support, including that of House Judiciary Committee Chairman Bob Goodlatte (R-Va.), would raise the evidentiary standard in federal forfeiture cases to "clear and convincing," which means that the claim is highly and substantially more probable than not, and places the burden of proof on the government, where it should be, rather than the property owner. The bill also makes some necessary procedural changes to existing law, provides legal counsel to indigent property owners, allows for easier recovery of legal fees if the property owner is successful in the case, and codifies the Department of Justice’s administrative changes related to the Internal Revenue Service’s egregious use of structuring laws.
These are positive reforms that restore due process in federal forfeiture proceedings.

Like CAFRA in 2000, there is a real missed opportunity in this effort. The Due Process Act does not address the Department of Justice’s Equitable Sharing Program, which facilitates abuse through federal forfeiture laws. The program, which was suspended in late 2015 and restarted in March, allows state and local law enforcement working in coordination with federal officials to seize property and subject it to federal forfeiture laws, often circumventing protective state laws. The Department of Justice’s Assets Forfeiture Fund, through which equitable sharing payments are made, grew from $94 million in 1986 to $4.5 billion in 2014. State and local law enforcement receive up to 80 percent of the proceeds from federal forfeiture in which they are involved, which creates a profit incentive for what is a funding source.

Sen. Rand Paul (R-Ky.) introduced legislation, the Fifth Amendment Integrity Restoration Act, or FAIR Act, that would have eliminated the Equitable Sharing Program. Unfortunately, some congressional Democrats and Republicans are afraid to go after the program, despite its reputation for facilitating abuse through the taking of innocent people’s property, because of backlash they may receive from law enforcement.

Obviously, forfeiture is a valuable tool for fighting criminal activity. But protections should be in place to ensure that law enforcement is truly cracking down on crime and not seizing the property of innocent people. Ideally, a criminal conviction would be required to permanently seize an individual’s property or, at least, the evidentiary standard in civil court would be raised to "proof beyond a reasonable doubt." Nevertheless, the Due Process Act is a step in the right direction. Hopefully, when the atmosphere is amenable, Congress will eliminate the Equitable Sharing Program and fully restore due process in federal courts. Perhaps next time, it will not take nearly two decades to accomplish.