June 26, 2020

Senators Crapo, Paul, King, Lee Introduce FAIR Act to Reform Civil Asset Forfeiture Process, Protect Innocent Americans

Washington, D.C. -- U.S. Senators Mike Crapo (R-Idaho), Rand Paul (R-Kentucky), Angus King (I-Maine) and Mike Lee (R-Utah) reintroduced the bipartisan Fifth Amendment Integrity Restoration (FAIR) Act, S. 4074, to protect property owners’ rights, defend innocent Americans and restore the Fifth Amendment’s role in civil forfeiture proceedings. 

“Requiring Americans to prove their property should not have been taken by the government, rather than the government proving guilt, undermines our system of justice,” said Senator Crapo.  “Commonsense restraints must be instituted to end civil asset forfeiture abuses.  The FAIR Act would put the burden of proof where it should be—on the government, not innocent Americans.”  

Senator Crapo has co-sponsored the FAIR Act in multiple congresses and has long maintained that overly-aggressive means of seizing the property of innocent Americans contradicts fundamental constitutional protections. 

S. 4074, The Fifth Amendment Integrity Restoration (FAIR) Act:

  • Eliminates “Equitable” Sharing: The federal “equitable” sharing program allows state law enforcement officers to turn seized property over to federal officials for forfeiture--and get up to 80 percent of the proceeds of the forfeited property.  The FAIR Act ends “equitable” sharing and ensures that law enforcement cannot ignore state law.
  • Restores Principle of “Innocent Until Proven Guilty”: Under current law, federal law enforcement agencies may take property suspected of involvement in crime without charging the property owner with a crime.  The FAIR Act places on the government the burden to show that a property owner consented to his property being used in a crime by a third party (or that the property owner was willfully blind to the criminal activity). 
  • Requires Clear and Convincing Evidence: The FAIR Act would require that the government prove its case by the higher standard of clear and convincing evidence, instead of a current standard that only requires a preponderance of the evidence that a defendant’s property was used for an illegal purpose.
  • Protects the Right to Counsel: Under current law, property owners can receive appointed counsel due to indigency only if (1) they request it, and (2) their home has been seized.  The FAIR Act would ensure that owners have the opportunity to receive representation in all civil forfeiture proceedings. 
  • Removes the Profit Incentive: Law enforcement should be motivated by public safety, not financial rewards.  The FAIR Act would restore the rule in which the proceeds of forfeiture go to the Treasury’s General Fund, where Congress can appropriate the money for any purpose.  
  • Reforms IRS Seizures: The FAIR Act requires that the IRS prove that the defendant knowingly deposited funds with criminal intent before they can seize the property.  It also requires that a probable cause hearing be held no later than 14 days after the IRS seizes funds under the pretense of a structuring violation.
  • Enacts Strong Reporting Requirements: The Department of Justice will be required to compile and publish the percentage of its seizures that were subjected to civil and criminal asset forfeiture.
  • Awards Treble Damages to a Successful Plaintiff: Currently, forfeited property is often not worth the cost of litigation.  Trebling the damages would provide both a disincentive for forfeiture to occur in the first place and an incentive for plaintiffs to bring an action in court.
  • Eliminates IRS and Customs Carveouts for Basic Protections Otherwise Granted by Federal Law: Today, in U.S. Customs and IRS cases, property owners are denied basic protections provided by the Civil Asset Forfeiture Reform Act (CAFRA), due to Congress specifically making exceptions for those two agencies in that law.  The FAIR Act would remove these carveouts for Customs and the IRS.
  • Eliminates All References to Administrative Seizures in the U.S. Code: Administrative forfeitures happen automatically when property owners fail to challenge a seizure in court for any reason, including the inability to afford a lawyer or a missed deadline to file a claim.  The seized property is simply presumed “guilty” without a neutral arbiter such as a judge determining whether it should be permanently taken from its owner.  According to the Institute for Justice, administrative forfeitures account for 88 percent of all forfeitures.  This provision would effectively force the government to go to court to keep property it has seized. 

Full text of the bill can be found HERE