Andrew Wimer
Andrew Wimer · May 9, 2023

WASHINGTON—Fifteen influential nonprofit organizations from across the ideological spectrum sent a coalition letter calling on House Judiciary Committee Chairman Jim Jordan (R-OH) and Ranking Member Jerrold Nadler (D-NY) to reform the federal civil forfeiture system. Under current law, civil forfeiture allows the federal government to seize—and keep—cash, cars, homes, and other property that law enforcement merely suspects is related to criminal activity. The letter notes that both committee leaders supported H.R. 1525, the Fifth Amendment Integrity Restoration Act (FAIR Act), in the previous Congress.

“Americans across the political spectrum recognize that civil forfeiture turns justice on its head,” said Institute for Justice (IJ) Senior Attorney Dan Alban, who co-directs IJ’s National Initiative to End Forfeiture Abuse. “For decades, innocent property owners have lost their hard-earned cash, cars and even homes because the forfeiture system is stacked against them and incentivizes policing for profit. The FAIR Act will help tilt the playing field back toward due process.”

Law enforcement has a powerful financial incentive to seize and forfeit property since the proceeds flow into accounts controlled by agencies, not Congress. Over the past two decades, more than $45.7 billion was deposited into the forfeiture funds run by the U.S. Department of Justice and the Treasury Department. State and local agencies can profit too. Through “equitable sharing,” police and prosecutors can collaborate with a federal agency, evading any stricter state law protections against civil forfeiture, and collect up to 80 percent of the proceeds. Altogether, at least $68.8 billion was forfeited by state and federal agencies from 2000-2019.

The FAIR Act attacks this improper financial incentive in two important ways. First, it directs all federal forfeiture proceeds to the General Fund of the United States so that Congress can appropriate those monies as it sees fit. Second, the bill ends the “equitable sharing” program.

Critically, the FAIR Act would end administrative forfeiture proceedings, which are how more than 80% of federal forfeitures are completed. This is not a court, but an administrative process in which the same agency that seized the property acts as judge and jury if the property owner challenges the forfeiture. The FAIR Act ensures that property owners have their day in a real court with a neutral judge.

Given the difficulty property owners face when navigating the federal civil forfeiture regime, the bill will guarantee the right to an attorney during federal civil forfeiture proceedings. It also requires the federal government to prove by clear and convincing evidence (as opposed to mere preponderance of the evidence) that the property is related to a crime. Finally, innocent owners of property used by another person to allegedly commit a crime will not have to prove their own innocence to recover their seized property.

Spearheaded by the Institute for Justice, the coalition letter was signed by organizations spanning the political spectrum, including the American Civil Liberties Union, Americans for Prosperity, the Competitive Enterprise Institute, the Drug Policy Alliance, the Due Process Institute, the Goldwater Institute, the Law Enforcement Action Partnership, the Leadership Conference on Civil and Human Rights, the NAACP, the National Association of Criminal Defense Lawyers, the National Federation of Independent Business, the National Motorists Association, the National Taxpayers Union, and the R Street Institute.