Bipartisan Bill in Congress Would Dramatically Reform Civil Forfeiture Laws

WASHINGTON—Today, Rep. Tim Walberg (R-MI) and Rep. Jamie Raskin (D-MD) reintroduced an enhanced version of the Fifth Amendment Integrity Restoration (FAIR) Act, H.R. 1525, which would enact a sweeping overhaul of federal civil forfeiture laws. The bill would remove the profit incentive that drives so many federal forfeitures, end the federal “equitable sharing” program that is used to circumvent state law protections for property rights, and eliminate the unfair administrative forfeiture process.

“The new FAIR Act takes an even stronger stand against abusive forfeitures than in the past by ending administrative forfeitures,” said IJ Senior Attorney Dan Alban, who heads IJ’s National Initiative to End Forfeiture Abuse. “Protecting Americans’ property rights isn’t a partisan issue and we’re glad to see lawmakers from across the aisle working together to pass true reforms.”

The FAIR Act would enact the following changes to federal civil forfeiture:

• Ensures Forfeiture Victims’ Fair Access to Courts. Currently, up to 98.6% of property seized by federal agencies is forfeited by bureaucrats in those administrative agencies, outside the courts. The FAIR Act eliminates administrative forfeiture, ensuring that only federal courts, not administrative agencies, can order civil forfeitures to the federal government. The FAIR Act further provides for access to counsel for those seeking return of their property.
• Ends the Profit Incentive by Sending Federal Forfeiture Funds to the U.S. Treasury. Today, proceeds from civil forfeitures go to the DOJ or the Treasury Forfeiture Fund and are spent outside the congressional appropriations process, so federal agents have an economic incentive to pursue forfeitures to grow funding for their agencies. The FAIR Act ends this profit incentive by sending proceeds from all civil forfeiture directly to the U.S. Treasury’s general fund and restores Congress’ control.
• Prevents Evasion of State Forfeiture Laws. The FAIR Act ends the “equitable sharing” program, thereby preventing the federal government from paying state and local law enforcement to evade any more-restrictive civil forfeiture laws that state legislatures have passed to protect their citizens’ property rights.
• Places the Appropriate Burden of Proof on the Government. The FAIR Act places the burden on the federal government to prove, based on clear and convincing evidence, that a property owner knew or should have known that the property was being used in relation to criminal activity. Under current law, the government need only show it is more likely than not that the property is connected to a crime in order to forfeit it.
• Protects Innocent Owners from Forfeiture. Innocent owners of property used by another person in relation to a crime will be able to recover their seized property by showing they did all they reasonably could to protect against any unlawful use by that third party.

Earlier this week, IJ filed a new lawsuit against the FBI over its attempt to forfeit Linda Martin’s savings. Linda has not been charged with any crime, but her $40,200 cash savings were seized as part of an FBI raid on the safe deposit box company from which she had rented a box. Her case illustrates how the FAIR Act’s reforms could protect innocent property owners.

Months after the raid on the deposit box company, Linda received a notice from the FBI telling her that her money was subject to forfeiture. But the notice didn’t say what she did wrong. Linda tried to parse the notice’s dense legalese, but she unwittingly submitted a “petition for remission,” which conceded the forfeitability of her life savings. In fact, by filing that petition, Linda was leaving it completely in the hands of the FBI—the same agency who would profit from the forfeiture—to decide whether to return any of her savings. 

The Institute for Justice advocates to end forfeiture through litigation, strategic research and legislation. IJ has class action lawsuits aimed at stopping suspicionless seizures of cash at airports, roadside seizures on highways, and a city program that takes cars from innocent owners. IJ’s landmark study looking at state and federal forfeiture, Policing for Profit, is now in its third edition. IJ’s advocacy has led to Maine, Nebraska and New Mexico ending civil forfeiture and replacing it with criminal forfeiture.