Senator Paul Pushes Substantial Forfeiture Reform

The movement for civil asset forfeiture reform has been gaining momentum as of late.  What started as a spotlight on the national practice from a libertarian law firm has recently spawned interest in local to national media.

Now, Kentucky Senator Rand Paul has filed a bill seeking to substantially rein in the practice at the federal level.

Entitled the “Fifth Amendment Integrity Restoration (FAIR) Act,” (S. 2644) this item of legislation proposes substantial reforms to the process through which the government can take property absent a criminal conviction.

The bill raises the burden of proof to execute the forfeiture of the property from “preponderance of the evidence” (in layman’s terms: just slightly more likely than not) to “clear and convincing evidence.”  In order to take full ownership of the property, federal prosecutors must now demonstrate that the item(s) in question has a “substantial connection” to the criminal offense to a higher standard approaching (though still short of) that for finding criminal guilt.

Perhaps most notably, the bill essentially stops equitable sharing, the common “end-around” used by state and local agencies to circumvent state forfeiture law.  As earlier research on civil asset forfeiture has shown, agencies in states with tighter civil forfeiture laws are more likely to engage in equitable sharing.

Further, the FAIR Act breathes new life into the “innocent owner” defense that lay eviscerated following Bennis v. Michigan.  Owners of property used by others for criminal purposes now must be shown to know their property was being used in illegal activities.

However, the “willful blindness” caveat contained in the bill could serve to hamper the effectiveness of this defense.  After all, how does one demonstrate due diligence in hedging against a future crime?

It also fails to extend already-existing procedural protections (namely, right to counsel) that those accused of criminal activity are due.  The cost of one’s own legal defense (oftentimes tens of thousands of dollars) is not transferable, and forces the own to determine if the legal victory is worth the cost to earn it irrespective of innocence.

While the fate of the current bill in still undetermined, it is heartening to see Congress proposing serious measures to preserve the sanctity of property rights and uphold the rule of law.

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Harsh Results from Civil Asset Forfeiture Abuse

Recent coverage in both popular and independent media has drawn national attention to the practice of civil asset forfeiture.

Civil asset forfeiture (or CAF) is the practice of taking legal action against an inanimate object for its alleged role in criminal activity, regardless of the owner’s complicity. While ostensibly nonsensical, one need only look at cases like United States v. $10,500 in U.S. CurrencyState of New Jersey v. One 1990 Ford Thunderbird, or Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado Street to see the utter absurdity of the practice.

CAF is different from criminal asset forfeiture, whereby the State takes one’s property after having convicted the accused, who is entitled to all the procedural safeguards of a criminal trial.

Since a Ford Thunderbird does not enjoy the same presumption of innocence a criminal defendant does, the owner of the property bears the burden of proof in establishing their innocence in the matter in 38 states (including ostensibly libertarian-minded states like Idaho, New Hampshire, and Texas).

Six states have laws that vary depending on the property, and only six states place the burden of proof on the government.

Given the widespread tolerance of the practice, it is no surprise that abuses are relatively easy to find.

A particularly outrageous example of CAF abuse was recently highlighted in ProPublica. Rochelle Bing, a home health assistant, faced the potential loss of her Philadelphia home after her son sold crack-cocaine to an informant. She was unaware that her son was engaged in such activities, and no evidence of narcotics distribution was found when law enforcement officials searched the house.

However, as Pennsylvania is amongst the 38 states that require the property’s owner to prove their innocence and that property can be seized on the preponderance of the evidence it was used in the commission of a crime, Ms. Bing was forced to fight for her home. With the assistance of the University of Pennsylvania’s Legal Clinic, Ms. Bing was able to retain her property, though not before 23 separate court appearances over two years.

While the Philadelphia District Attorney stands to the benefit from the post-seizure sale of the home, the office defends the practices suggesting that neighborhoods benefit from the removal of “nuisance properties.”

This case, while tragic, is by no means uncommon. In FY 2012, the federal government alone remitted over $447 million back to the states in equitable sharing payments (payments for property seized by a federal agency paid to state and local police agencies in order to “foster cooperation” among the different strata of law enforcement).

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Georgia Jails Post Lower Populations

Less than one year after implementing smart, conservative sentencing reform, Georgia’s counties are already bearing witness to the benefits.

Last session, Georgia’s legislature decided to reevaluate the sentences for some low-risk, non-violent crimes, and discussed whether public safety dictated that offenders committing those crimes should be locked up. In some cases, there was no benefit to public safety in jailing those offenders, and in fact the high costs outweighed any perceived benefit.

As a result, today, out of 37,000 county jail beds in Georgia, 10,000 of them are vacant.

This reduction in jail bed usage means that counties and local governments are saving substantial amounts of taxpayer dollars. Jail beds can cost between $25 and $50 per day, and each day that each bed isn’t being unnecessarily filled equates to significant savings in county budgets.

Furthermore, those beds are now available for serious and violent offenders who do need to be locked up, bolstering public safety across the state. Finally, reducing population pressures can result in safer in-facility conditions for staff and a greater ability to keep order.

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At the Heritage Foundation: “Clemency: Old Problems, New Solutions”

On Monday, December 10th, the Constitution Project, Families Against Mandatory Minimums, the Heritage Foundation, and the National Association of Criminal Defense Lawyers are hosting a panel discussion titled “Clemency: Old Problems, New Solutions.” The event will take place from 12:00 PM – 1:00 PM in the Lehrman Auditorium at the Heritage Foundation:

214 Massachusetts Ave NE
Washington DC 20002-4999

The Heritage Foundation introduces the event on its website as follows:

“Clemency, Alexander Hamilton said, ‘is an act of grace and humanity.’ While President Obama has, at least so far, granted clemency only 22 times, other presidents, both Democrat and Republican, have been far more generous. President George W. Bush, for example, pardoned, commuted or rescinded the convictions of 200 people, and President Bill Clinton did the same for 459 people. President Jimmy Carter granted clemency 566 times during his one term in office, although that is far from the record, a distinction which belongs to President Franklin Roosevelt who granted clemency 3,687 times. The Christmas season, a traditional time for presidential forgiveness, is a good time to re-examine how well the clemency process is working.

‘Join us for a discussion with a distinguished panel of bipartisan experts who will explore whether and how the clemency process has deviated from its proper, traditional function. Our panelists will also consider how to make pardons, as Chief Justice John Marshall said, ‘an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.’”

The panel assembled for the event is impressive:

Albert Alschuler, Julius Kreeger Professor Emeritus of Law and Criminology, Northwestern University Law

Gregory Craig, Former White House Counsel for President Barack Obama and Special Counsel for President Bill Clinton

The Honorable Robert “Bob” Ehrlich, Jr., 60th Governor of Maryland and Senior Counsel, King & Spalding LLP

Margaret Love, Former U.S. Pardon Attorney, and Practicing Attorney, Law Offices of Margaret Love

The Heritage Foundation’s Paul Rosenzweig will host the panel discussion.

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IJ’s New Video on the Motel Caswell Case

The Institute for Justice has posted a new video explaining the notorious Motel Caswell asset forfeiture case in Massachusetts. The case has been generating significant media attention, including an article in the Wall Street Journal and a George F. Will column in the Washington Post. Professor Ilya Somin has also written a bit about the case on the Volokh Conspiracy.


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