New bill seeks to curb federal civil asset forfeiture laws

Lawmakers have recently introduced House and Senate Bills that would raise the burden of proof and remove profit motive in civil asset forfeiture cases.

Civil asset forfeiture laws allow authorities to seize property if they suspect that it played a role in criminal activity. As some people in Baltimore have learned firsthand, under these laws, authorities do not have to prove their suspicions were correct or formally charge the property owner with a crime. The burden of proof falls on the property owner, which can make recovering seized assets challenging.

Despite criticisms, federal civil asset forfeiture laws have been increasingly used in recent years. According to The Washington Post, the number of federal asset forfeiture cases has doubled since President Obama took office. In the 2014 fiscal year alone, agencies affiliated with the Justice Department seized property worth a staggering $3.9 billion. Millions of dollars are forfeited yearly in Maryland by the U.S. Government. Fortunately, lawmakers are now considering reforms that could help prevent the wrongful seizure of assets.

Clear, convincing evidence

U.S. Senator Rand Paul and U.S. Representative Tim Walberg introduced in January, 2015, the Fifth Amendment Integrity Restoration Act of 2015 (the FAIR Act) to the House as H.R. 540 and as S. 255 in the Senate. Both bills were referred to committees and are pending there. This bill would establish a stricter burden of proof in federal civil asset forfeiture cases. The current legislative text outlines the following provisions:

• Authorities would need to prove by clear and convincing evidence that property is subject to forfeiture rather than merely proving their case by the preponderance of the evidence
• When the prosecution seeks to forfeit property because the property was used to commit a crime, it would be required to prove by clear and convincing evidence that the owner used the property to help commit a crime, or that the owner knew or should have known that the property was being used for illicit activity.
• Authorities would lack profit motive, as any profits from asset seizure would be deposited in the General Fund of the Treasury, rather than in Department of Justice forfeiture accounts.
• Courts would be required to use a broader set of criteria to assess whether forfeiture was excessive by considering the seriousness of the offense, the extent of the link if any of the property to the offense, the range of sentences available for the offense giving rise to the forfeiture, the fair market value of the offense, and the hardship to the property owner and dependents were the property to be forfeited.

The bill proposes to make substantial changes in 18 U.S. Code Section 983, which governs civil forfeiture proceedings.

Unsubstantiated asset seizures

These reforms have the potential to prevent questionable cases of federal civil asset forfeiture. For example, our firm recently represented a small business owner whose employee was responsible for depositing the proceeds of business activities in the bank for the owner. The funds were wrapped in receipts showing the source of the funds. The employee was stopped and found to possess a modest amount of a controlled substance, however the funds intended for the business bank account wrapped in receipts were seized. All funds were eventually recovered, however the process was time consuming for the owner, and he needed to hire counsel to seek the return of the funds. Under the proposed reforms in the FAIR Act, authorities would be discouraged from pursuing seizures such as this one, which was based on suspicion and lacked convincing evidence.

Addressing asset forfeiture

The Wall Street Journal notes that several recent attempts at reforming civil asset forfeiture laws have met with pushback. In some states, law enforcement authorities and prosecutors have lobbied for the maintenance of existing forfeiture laws. Here in Maryland, Gov. Larry Hogan recently vetoed on May 22, 2015, Senate Bill 528, legislation that sought to limit the ability of authorities to turn seized assets over to federal authorities.

As long as the current laws are in place, the risk of property loss may be significant for people in Maryland and other states. Consequently, anyone whose assets have been seized or who has been the subject of forfeiture proceedings should consider meeting with an asset forfeiture attorney. An attorney may be able to provide advice on challenging the forfeiture by negotiation or litigation and working toward the recovery of the seized assets.