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Stopping Civil Asset Forfeiture Abuses

Guest column submitted by U.S. Senator Mike Crapo

I have been alarmed to read outrageous reports of abuse of civil asset forfeiture where Americans' property is being seized without it first being proven that a crime was committed or without even an arrest or warrant.  From reports of the use of new devices to scan a motorist's cards and seize money during a traffic stop to a person's life savings and family business being taken due to unproven suspicion, excessive use of civil asset forfeiture requires action.

The nonpartisan Congressional Research Service (CRS) reports that asset forfeiture plays a major role in federal prosecutions and the Attorney General and the Secretary of the Treasury enjoy wide latitude to share confiscated property with participating federal, state and local law enforcement through a policy known as "equitable sharing."  The Institute for Justice reports the forfeiture funds of the U.S. Department of Justice and U.S. Treasury Department together took in nearly $29 billion from 2001 to 2014, and combined annual revenue grew 1,000 percent. 

Law enforcement must have effective tools for apprehending terrorists and drug dealers.  But, the expansion of civil asset forfeiture and reports of the overly-aggressive means of seizing the property of innocent Americans is deeply concerning.  It is unjust that property is being seized without first proving criminal use, and property owners have little opportunity to retrieve wrongly-seized property.  The burden of proof falls on the property owner to prove that it was not used in a crime, instead of the government having to prove that it was.  Additionally, often much of the seized assets are retained by those seizing them, which can cause a distorted incentive. 

I have been a long-time proponent of addressing problems with civil asset seizure.  I co-sponsored S. 3045, the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act of 2016.  The DUE PROCESS Act would better protect innocent property owners: 

  • requiring the government to prove a connection between the property and an offense;
  • broadening the timelines for property owners to respond to and challenge forfeitures;
  • requiring greater notice to owners of seized property; and other improvements. 

This commonsense, bipartisan legislation was introduced by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Patrick J. Leahy (D-Vermont) and followed a number of hearings to review the problems associated with civil asset forfeiture.  Its companion bill introduced in the House of Representatives was passed by the House Judiciary Committee.

I am also a co-sponsor of S. 255, the Fifth Amendment Integrity Restoration (FAIR) Act.  This legislation that was introduced by fellow Senator Rand Paul (R-Kentucky) would better protect property owners from wrongful property seizures and decrease potential monetary incentives for agencies to seize assets.  The FAIR Act would put the burden of proof where it should be-on the government, not innocent Americans.  The government would have to prove that the assets were used to facilitate criminal activity.  Importantly, to address unjust incentives, the legislation would require proceeds from the disposition of seized property to be deposited in the General Fund of the U.S. Treasury, instead of going to the agencies seizing property.   

Requiring Americans to prove that their hard-earned money and property should not have been taken by the government undermines our system of justice and requires immediate attention.  We must enact better protections for Americans whose property is seized without any judicial finding of criminal wrongdoing.

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