Rep. Jim Sensenbrenner (R-WI), along with over a dozen cosponsors, including House Judiciary Committee Chairman Bob Goodlatte (R-VA), Rep. John Conyers (D-MI), Sheila Jackson Lee (D-TX), and Rep. Darrell Issa (R-CA) reintroduced the DUE PROCESS Act (H.R. 1795), a substantial overhaul of federal civil forfeiture laws on March 29, 2017. The new legislation comes fresh off the heels of a scathing report on the Justice Department’s forfeiture activity, released the same day by the DOJ’s Office of the Inspector General.
“The DUE PROCESS Act is a firm step in the right direction to remedy some of the worst injustices found in civil forfeiture,” said Darpana Sheth, a senior attorney at the Institute for Justice who heads IJ’s End Forfeiture Initiative. “True to its name, the DUE PROCESS Act would provide many safeguards for innocent owners fighting to regain their taken property.”
Civil forfeiture allows law enforcement agencies to permanently confiscate property without charging anyone with—let alone convicting them of—a crime. Federal programs, including equitable sharing, warp law enforcement priorities by allowing federal, state and local agencies to keep a portion (or even all) of the proceeds taken from forfeited property. Over the past decade, the DOJ’s Assets Forfeiture Fund has taken in over $28 billion.
To improve federal forfeiture laws, the DUE PROCESS Act would enact several key reforms:
- Shift the burden of proof from the property owner onto the government, restoring the principle of “innocent until proven guilty”;
- Raise the standard of proof in civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing”;
- Provide legal representation for indigent owners in administrative and judicial proceedings;
- Limit forfeiture for currency “structuring” only when funds in question are derived from an illegal source or used to conceal illegal activity, codifying a recent IRS policy change in response to documented abuses;
- Allow the recovery of attorney’s fees if a case is settled;
- Provide a hearing for defendants to contest the pretrial restraint of property needed to pay for counsel, overturning the U.S. Supreme Court’s distressing Kaley v. United States decision; and
- Increase oversight and transparency by requiring an annual audit of federal civil forfeitures and creating two publically available databases.
“For as far as the bill goes, Congress must amend the bill to end the profit incentive fueling forfeiture abuse and abolish the Equitable Sharing Program, which lets state and local law enforcement circumvent their own state forfeiture laws,” said Scott Bullock, president and general counsel of the Institute for Justice. “Forfeiture reform has earned widespread public and bipartisan support, and we urge leadership in the House and the Senate to give the DUE PROCESS Act swift consideration on the floor.”
The DUE PROCESS Act is just the latest effort to reform civil forfeiture. Earlier this month, Sen. Rand Paul (R-KY) and Rep. Tim Walberg (R-MI) reintroduced their own version of federal civil forfeiture reform, the FAIR Act. On the state level, since 2014, 19 states and Washington, D.C. have enacted reforms (including Ohio, Michigan, Mississippi, Utah and Minnesota just this year). Further legislative efforts are currently pending in about 20 states.