Rand Paul and Civil Asset Forfeiture Reform

Kentucky Senator Rand Paul has introduced a bill to reform federal civil forfeiture laws. As Radley Balko writes in the Washington Post:

This is a pretty big deal, especially if Sen. Rand Paul (R-Ky.) can round up enough co-sponsors to build some momentum.

Sen. Rand Paul yesterday introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which would protect the rights of citizens and restore the Fifth Amendment’s role in seizing property without due process of law. Under current law, law enforcement agencies may take property suspected of involvement in crime without ever charging, let alone convicting, the property owner. In addition, state agencies routinely use federal asset forfeiture laws; ignoring state regulations to confiscate and receive financial proceeds from forfeited property.

The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property.

The bill would also require states “to abide by state law when forfeiting seized property.” This is important. Currently, a number of state legislatures across the country have passed reform bills to rein in forfeiture abuses. The problem is that the federal government has a program known as “adoption” or “equitable sharing.” Under the program, a local police agency need only call up the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives or similar federal agency. That agency then “federalizes” the investigation, making it subject to federal law. The federal agency then initiates forfeiture proceedings under the laxer federal guidelines for forfeiture. The feds take a cut and then return the rest — as much as 80 percent — back to the local agency. This trick thwarts the intent of state legislature that have attempted to make civil forfeiture more fair when it comes to burden of proof, protections for innocent property owners and eliminating the perverse incentive of allowing forfeiture proceeds to go to the same police agency that made the seizure.

Which brings us to a final important provision in the bill: It would “would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.”

I am glad someone is doing something about this. Civil asset forfeiture abuse is becoming a growing problem all over the country. I am sure there are still too many people who are unaware that the police; state, local, or even federal agents, can simply declare that your house or car was bought with drug money or used in a crime and simply take it. Because this is a civil action and not a criminal proceeding, they do not have to prove you guilty of any crime. They don’t even have to charge you with a crime. It is up to you to prove that the property seized  was not used in any crime.

This problem has been dealt with by state governments, with varying degrees of effectiveness. The Institute for Justice has published a report on civil forfeiture laws, grading the states from A to D. Indiana is one of the better states getting a B+ for its forfeiture laws but a C on evasion with a combined grade of C+

Indiana has some of the better civil forfeiture laws in the country, at least with regard to the profit incentive.  Unfortunately, to forfeit your property, the government only needs to show that it was more likely than not that your property was related to a crime and thus is forfeitable—the legal standard of preponderance of the evidence, lower than the beyond a reasonable doubt standard required for a criminal conviction.  But law enforcement in Indiana does not receive any of the funds gained through civil forfeiture, which keeps the focus of law enforcement on preventing crime rather than raising funds.  After deducting law enforcement costs for the prosecution of civil forfeitures, all forfeiture revenue is sent either to the general fund of the state or the state’s education fund.  Indiana does participate in equitable sharing with the federal government, averaging more than $2.6 million per year in the 2000s.

Imagine what conditions are like for a state for an D grade. West Virginia is at the bottom of the list with a forfeiture law grade of D- and an evasion grade of D for a combined D- grade.

West Virginia has poor civil forfeiture laws.  The government must demonstrate that property is related to a crime and subject to forfeiture by a mere preponderance of the evidence, a standard much easier for law enforcement than proving criminal guilt beyond a reasonable doubt.  And the burden is on owners for innocent owner claims, making owners effectively guilty until proven innocent.

When money is seized and forfeited, all of the proceeds go to law enforcement:  10 percent goes to the prosecuting attorney, and 90 percent goes to a law enforcement investigation fund.  Although there is no requirement in West Virginia that law enforcement officials collect information on forfeiture, a January 2009 article in the Register Herald offered some insight into the way police in Beckley, W.V., used forfeiture proceeds.  In 2008, the article reported, police brought in $65,000 and six vehicles through forfeiture.  Forfeiture revenue provided some of the funding to buy a $10,000 K-9 police dog for the department.[1]

No fewer than 29 states get a grade of D. Eighteen get a C grade, two a B, and only Maine gets an A. The problem, as the article states, is that no matter how good any state’s protections against civil forfeiture might be, as soon as the federal government gets involved, the laxer federal standards are applied. According to the Institute for Justice’s scale, the federal government gets a D-.

As the numbers below indicate, the federal government has a very aggressive civil forfeiture program.  Federal law enforcement forfeits a substantial amount of property for its own use while also teaming up with local and state governments to prosecute forfeiture actions, whereby all of the agencies share in the bounty at the end of the day.

Outrage over abuse of civil forfeiture laws led to the passage of the Civil Asset Forfeiture Reform Act (CAFRA) in 2000.  Under these changes, the government now must show by a preponderance of the evidence why the property should be forfeited.  The Act also created an innocent owner defense that lets individuals keep their property if they can show either that they did not know that it was being used illegally or that they took reasonable steps to stop it.

But while CAFRA heightened some procedural protections, it failed to address the largest problem in the federal civil forfeiture system:  the strong pecuniary interest that federal law enforcement agencies have in the outcome of the forfeiture proceeding.  For the past 25 years, federal agencies have been able to keep all of the property that they seize and forfeit.  And that has led to explosive growth in the amount of forfeiture activity at the federal level.

 

This policy began as part of the War on Drugs. The idea was that if law enforcement couldn’t find enough evidence to convict drug dealers or members of crime organizations, they could at least be deprived of the assets they needed to continue operations. This was obviously an enormous success judging from the lack of drugs in this country. In fact, since all too often, money gained from the sales of confiscated property goes directly into funding for law enforcement, there is a strong incentive for corruption and abuse. It is also a lot easier and safer to target small time criminals or the innocent for asset forfeiture than to pursue drug cartels or the mafia.

I wish Rand Paul success with this legislation. It is something badly needed.

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