Today, Rep. Jim Sensenbrenner (R-Wisc.), along with House Judiciary Committee Chairman Bob Goodlatte, (R-Va.), Rep. John Conyers (D-Mich.), and Sheila Jackson Lee (D-Texas), introduced the DUE PROCESS Act, which would strengthen private property rights by making it harder for federal officials to forfeit property.
Following the bill’s introduction, Darpana Sheth, an attorney at the Institute for Justice who spearheads the Institute’s nationwide initiative to end civil forfeiture, issued the following statement:
As litigators, we have seen the injustices of civil forfeiture first hand. Across the country, hundreds of thousands of Americans have lost their hard-earned savings, cars, businesses, and even their homes, without ever being charged with a crime, let alone convicted of one. In this upside-down world where the property itself is on trial, property owners enjoy no right to an attorney as federal officials play prosecutor, judge, and jury in administrative forfeitures. If property owners successfully navigate the procedural maze to get before a judge, they must prove that they did not know about or consent to the illegal use of their property, turning the presumption of innocence on its head. Worse, federal programs—including the Equitable Sharing Program—allow federal and state and local law enforcement to keep forfeiture proceeds, creating a perverse financial incentive to seize and forfeit property.
The DUE PROCESS Act is a bold step in the right direction to remedy some of the injustices of civil forfeiture. Although the bill does not eliminate the perverse financial incentive, it provides greater safeguards to give innocent owners greater opportunity to contest the forfeiture of their property while also raising the evidentiary requirements to forfeit property.
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 provides a loophole for state and local law enforcement to circumvent their own state forfeiture laws.
What the DUE PROCESS Act does:
- Provides legal representation for those who cannot afford it in administrative and judicial proceedings;
- Raises the burden of proof necessary to forfeit property from a mere “preponderance of evidence”—informally understood as being “more likely than not” connected to a crime—to “clear and convincing”—the highest standard used in civil proceedings;
- Restores the presumption of innocence by requiring the government to prove that owners knew about or consented to the criminal use of their property;
- Establishes new timelines that better protect property owners’ due process rights;
- Provides a hearing for defendants to contest the pretrial restraint of property needed to pay for counsel;
- Allows the recovery of attorney’s fees if a case is settled;
- Increases oversight and transparency by requiring an annual audit of federal civil forfeitures and creating two publically available databases; and
- Limits forfeiture for structuring only when funds are derived from an illegal source or used to conceal illegal activity.
Key Facts about Federal Civil Forfeiture
Civil forfeiture is one of the greatest threats to private property and due process in our nation today. According to the second edition of Policing for Profit, the Institute for Justice’s groundbreaking report on civil forfeiture, since 2001, annual federal forfeiture revenue has exploded from less than $500 million to more than $5 billion, and state and local law enforcement take hundreds of millions more.
- The forfeiture funds of the Justice and Treasury Department—the largest federal forfeiture funds—together took in nearly $29 billion from 2001 to 2014.
- Law enforcement overwhelmingly favors civil forfeiture to criminal forfeiture—from 1997 to 2013, 87 percent of Department of Justice forfeitures were civil.
- State and local law enforcement are increasingly using federal law to take property, using “equitable sharing” to bypass their own states’ laws. Proceeds from the DOJ’s controversial equitable sharing program more than tripled between 2000 and 2013, and policy changes instituted earlier this year are unlikely to reverse the trend.