House Judiciary Committee Moves Forfeiture Reform Forward

WASHINGTON—The House Judiciary Committee unanimously approved H.R. 1525, the Fifth Amendment Integrity Restoration (FAIR) Act, which would enact a major 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, among other reforms.

“Civil forfeiture reform is long overdue. It is heartening to see some real progress toward protecting Americans’ property rights,” said Institute for Justice (IJ) Senior Attorney Dan Alban, who heads IJ’s National Initiative to End Forfeiture Abuse. “We hope that today’s strong showing of bipartisan support prompts leaders to quickly move this bill through the full House and then the Senate.”

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 to commit a crime will no longer have the burden to prove they were unaware of the unlawful use or took steps to prevent it. Instead, the government will now bear the burden to prove that the owner was aware of the unlawful use and failed to take reasonable actions to stop it.

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. Since 2014, 37 states and Washington, D.C., have enacted forfeiture reforms.