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.

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).

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.

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.

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.


Crime, Workforce, and Economic Development

In a recent poll, Detroit residents pegged crime as their biggest concern. This bucks the national trend of Americans worrying less and less about safety as crime rates drop. In fact, only one percent of Americans elsewhere believe that crime is the nation’s most important problem.

Much more troublesome, Detroit residents also say they plan to move—likely due, in part, to their daily concerns about public safety.

Without a viable workforce, economic development in Detroit will likely remain stunted, unable to thrive without citizens to fill the jobs, buy consumer goods in city limits, or use services that employ other Detroit citizens.

Evidence-based criminal justice policy is key to fixing the problem in Detroit and in similar cities. With targeted interventions that truly address the underlying causes of crime, low-level offenders can effectively be rehabilitated, leaving prison bed space free to house the violent, dangerous offenders each jurisdiction needs off its streets to truly thrive.

Website Allows Users to See Full Legal Consequences of Criminal Records

A new website, launched by the American Bar Association and the Department of Justice’s National Institute of Justice, is revealing many of the overlooked punishments that accompany criminal convictions—those punishments not administered by the court. The website, Collateral Consequences, gives users a resource to find, in one place, all federal and state legal consequences of a criminal record.

For example, after a guilty plea, former offenders often find themselves unable to vote, unable to work in many professions, and even unable to live where they want to live. These lifelong punishments are often unknown at the time one is considering entering a plea.

As Daryl Atkinson, a staff attorney with the Southern Coalition for Social Justice, reflected after his prison term, forty months of incarceration was “a blip on the radar screen of life…[and yet] when I’m released I face this web of invisible punishments that I knew nothing about.”

While “collateral consequences” have always been a part of our legal system, the ABA and DOJ note that over the past twenty years, they have become more problematic because “they are more numerous and more severe, they affect more people, and they are harder to avoid or mitigate.”

Collateral Consequences is meant to provide a resource for those accused of crimes and their lawyers. The website allows users to search state and federal laws that would affect the ability of people with criminal records to reenter society. Users can search by state, types of restrictions, and types of offenses.

So far, the website includes information on state laws in nine states: Colorado, Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina, and New York. The remaining states are expected to be added within 18 months.

The DOJ and ABA hope the website will be used by those facing a potential life-long criminal record to be aware of the “legal limbo” they may face before they are caught in it.

Fifth Circuit Issues Ruling on Federal Sex Offender Laws

An en banc panel of the United States Court of Appeals for the Fifth Circuit recently ruled that the federal government has no constitutional basis to apply federal sex offender registry requirements to defendants released unconditionally prior to enactment of the federal sex offender laws and whose travel is purely intrastate.

The defendant in the case, U.S. v. Kebodeaux, served three months in a federal prison in 1999 for a sex offense. After serving his time, the federal government released him from custody without any conditions or post-release supervision. The opinion states that the federal government “severed all ties with him.” The defendant established residence in Texas and registered as a sex offender under the state requirements in effect. Thereafter, federal sex offender laws were enacted that included more heightened registration requirements than state law.

At some point after those federal sex offender registry laws went into effect, the defendant moved from San Antonio to El Paso—purely intrastate travel. He did not update his address on the registry within three days as the federal registration laws passed after his release from federal custody required him to do so, a requirement not found in state law. For this failure, the federal government convicted him for his failure to update his address as a violation of the federal registration law passed after his release from custody.

The Fifth Circuit found “no jurisdictional hook” for the charges against the defendant in this specific case. Only in this narrow set of circumstances, wherein an unconditional release from federal custody preceded enactment of the sex offender laws and no other jurisdictional basis (such as interstate travel) exists, is the application of the federal sex offender laws unconstitutional. States are still free to regulate and register these sex offenders, as is the federal government if the offender was in custody or under supervision at the time of enactment of the registry laws or at any time after.

The Fifth Circuit majority specifically rejected the federal government’s position that it could impose federal registry requirements on the defendant in this case due to the power given to Congress under the Commerce Clause of the United States Constitution. The Commerce Clause only permits Congressional regulation of the use of the channels of interstate commerce or things in or substantially affecting interstate commerce. Here, the federal government pointed to the possible effect the defendant’s intrastate travel could have on interstate commerce. The Fifth Circuit rejected this, stating that this interpretation is “so expansive that it would confer on the federal government plenary power to regulate all criminal activity” in contravention of Supreme Court precedent.

The opinion can be read here.

Predicting Violence in Pre-Trial Defendants

Nationwide, pre-trial incarceration – and the costs associated with it – is on the rise. Fiscal conservatives must ask whether a decrease in crime is actually resulting from the increase in costs. In the new issue of the Texas Law Review, an empirical study offers two important insights: first, that judges, who are charged with determining whom to detain pre-trial, “often detain the wrong people,” and second, some measures could provide judges the necessary tools to “release 25% more defendants while decreasing both violent crime and total pretrial crime rates.”

From the article:

If it can be shown that pretrial detention can be decreased and more defendants can be safely released without a commensurate increase in crime, more defendants will have access to pretrial liberty and due process, counties can save substantial amounts of money on corrections that can be put toward other important social goals, and the public can continue to feel safe at home.

The article, “Predicting Violence,” is available here.

New Report on Prosecutorial Regulation of Corporations

Low level criminal cases against individual defendants can sometimes be dismissed in lieu of a fine, or due to community service performed prior to the trial date, usually as recognition that the individual defendant’s debt to society has been paid and a trial is unnecessary. This standard practice is substantially expanded when federal prosecutors file charges against corporations involved in finance, health care, and other multi-billion dollar industries and enter into an agreement before trial, as detailed in a new report from the Manhattan Institute.

These agreements, named deferred prosecution or non-prosecution agreements, are entered into following the filing of criminal charges, and used by the corporations to avoid trial and the attendant collateral effects that can severely hamper business. They are also used by prosecutors to exact penalties without the cost and risk of proving their case before judge or jury.

After the U.S. Department of Justice files charges against a corporation, frequently for a violation of the Foreign Corrupt Practices Act, fraud, or antitrust law, the two sides to the criminal case come together under an agreement that usually involves two key aspects: a substantial fine and sometimes continuing prosecutorial oversight of the corporation.

The fines can be crippling: over $5 billion in 2009, $4 billion the year after that. But a far more onerous component of deferred or non-prosecution agreements is the prosecutorial regulation of the corporations involved, both at the time of the criminal case and often for some time into the future. The oversight can broadly encompass sales and compensation practices, merger and acquisition decisions, implementation of corporate monitors who report to prosecutors, and even ouster of corporate executives.

There have been over 200 such agreements in the last decade, and even include seven of Fortune magazine’s top 100 largest U.S. businesses.

As the Manhattan Institute points out, the problem with these agreements is not necessarily the underlying regulation—regulation of corporations is an important function of criminal laws when truly fraudulent behavior has taken place—but that these agreements evade judicial oversight and have significant economic impacts on the corporation. Further, companies fearful of negative publicity with a criminal trial, stunting of business growth, or ineligibility for federal contracts may forgo the risk of trial and enter into these agreements even if guilt is disputed.

These agreements could be a more efficient component of the criminal justice and regulatory system with a modicum of judicial oversight, and with a less broad scope, both in terms of the conduct for which such agreements may be used and in the long-term prosecutorial control over a private company.

The report, “The Shadow Regulatory State:  The Rise of Deferred Prosecution Agreements,” by James R. Copland, is available here.