I got several emails today asking for my take on the new civil forfeiture reform bill introduced yesterday by Rep. Walberg, HR 540. The current title is displayed as “To restore the integrity of the Fifth Amendment to the Constitution of the United States, and for other purposes.”
Currently no information is available on Congress.gov about what the bill will contain, but if you click the above link in a day or two the text should be there. I hope this means that the drafters are still working on the text, making it better, but it might just be a delay getting the bill printed.
The Drug Policy Alliance sent around a petition asking people to support “the FAIR Act” – H.R. 540/S. 255, apparently assuming (maybe on inside knowledge?) that that will be the title of the Act. Maybe it is exactly the same text as the bill introduced last session, H.R. 5502 – The FAIR Act, which expired at the end of the last legislative session.
I hope instead that Congress will think of this newly introduced bill as a blank slate upon which to write the ideal bill for forfeiture reform.
I have previously blogged about the shortcomings of the competing forfeiture reform bills introduced in the last legislative session, the Civil Asset Forfeiture Reform Act of 2014 (H.R. 5212) and The FAIR Act of 2014 (S. 2644, H.R. 5502). My prior critiques of the scant reforms (and in one instance probably an unobtainable reform) offered by those prior bills are relevant as we look at what any support-worthy forfeiture reform bill should contain.
What we really need is a procedural overhaul of the entire asset forfeiture process — civil and criminal.
Regulating or curtailing federal adoption of state and local seizures would only address a very limited part of that issue. Looking at the bigger picture — should the federal government even be able to intrude on state law enforcement priorities by using a financial incentive to enlist local agents to seize assets for the feds or otherwise aid in federal forfeiture cases, in exchange for a kickback to the state and local police agency? That is a much broader and more troublesome issue. Control is the key. Who controls the forfeiture squad when it is a multi-jurisdictional task force? When a state legislature passes a law, shouldn’t they be able to expect state and local agents to enforce that law, instead of running to the feds with the case, enforcing federal law while on the local law enforcement agency payroll?
This issue requires careful study, to really plug the holes. It is a many-headed Hydra. Maybe the state/federal financial kickback setup is wrong in the first place. Maybe all equitable sharing should be eliminated, not just federal adoptions. Why should federal agencies control state and local law enforcement? Don’t the federal agents have enough work to do enforcing federal laws and solving federal crimes that cross state borders and harm thousands?
CAFRA’s Reforms Didn’t Hold
Any effort to reform the federal forfeiture laws should start with CAFRA and the gaping holes left in it that have been exploited to nullify many of its reforms.
The most important reforms of CAFRA were the provisions intended to increase the availability of counsel to represent forfeiture victims. This has not happened.
CAFRA authorized court appointed attorneys in one narrow category of cases, and guaranteed counsel in another narrow category. Neither provision is being implemented on anywhere near the scale Congress intended — if at all.
CAFRA promised attorneys fees for lawyers who dared to take on the government in a meritorious forfeiture case and win. After 15 years, almost no courts have awarded CAFRA attorneys fees. Judicial interpretation of fee shifting provisions has turned fee-shifting statutes into Swiss cheese. These days, no defense lawyer would take on a forfeiture case of a client who couldn’t afford to pay them, betting on an attorney fee award if the client prevails — no matter how likely it would be that the client would win.
The government fought very hard to eviscerate these provisions on court appointed counsel and attorney fee awards. Forfeiture prosecutors prefer to keep forfeiture victims barefoot and pro se, making them easy pickin’s in court.
Pro se claimants are not equipped to successfully defend forfeiture cases — the procedures are too arcane and complicated for even experienced non-forfeiture lawyers. Inevitably, forfeiture claimants forced to represent themselves will miss a deadline or not properly respond to complicated legal theories in motions and burdensome discovery requests, and will lose. Generally the best they can do is negotiate a settlement for a small percentage of their property back.
Legislation needs to be enacted to level the playing field, so forfeiture claimants have the ability to be represented by a lawyer in most cases.
For those forced to represent themselves because the dollar value of the property is too low to feasibly hire counsel, in small dollar value cases the procedures should be simplified — like small claims court — to take away the prosecutors’ advantages from being lawyers pitted against laymen.
Criminal forfeiture needs to be reformed too – desperately
Many pundits advocating forfeiture reform lately are saying civil forfeiture is the culprit and that we should eliminate civil forfeiture and use criminal forfeiture instead, because a conviction is required in criminal forfeiture cases.
In reality, only for defendants charged with crimes have the right to keep their property unless convicted of the offense beyond a reasonable doubt. Third parties who own interests in property seized in someone else’s criminal case:
- don’t have any rights to participate in the court proceedings at all until the criminal conviction.
- can’t get discovery of the evidence in the criminal case.
- can’t later challenge a finding of forfeitability entered in the criminal case, in which they were not allowed to participate.
- can’t defend their property if they obtained their interest after the “tainting act” unless they can show they were bona fide purchasers for value.
- can lose their property if the court believes they were a straw owners and that the criminal defendant really owned the property.
- and they don’t get a jury trial on the issues above!
In several cases I have am defending or learned about, the government has named property for criminal forfeiture in criminal cases even though no criminal defendant owned any interest in the property. The government has then obtained a guilty plea from the criminal defendant, agreeing to forfeit property in which he did not own an interest. The government then asked the court to preclude third parties from relitigating the forfeiture of the property. I am currently litigating this issue, and won a dismissal on this issue last year. I have seen several cases of this happening in the last three years and suspect the practice is more widespread than my few anecodatal examples show.
Third parties in criminal forfeiture cases should not have less due process than claimants in civil forfeiture cases.
We can’t let media graphics define the issues for forfeiture reform
Only when the general public cries out for forfeiture reform does Congress pay it any heed. I know this from lobbying 8 years to get CAFRA passed.
Highway traffic stops are easy graphics, but the most serious offenses against our constitutional and human rights are not portrayed by the roadside forfeiture trap scenario which is usually used to depict our issue.
Simplistic graphics inspire simplistic solutions. The problems of asset forfeiture abuse are far too complex to have a simple solution.
Congress should hold hearings into asset forfeiture abuse and reform, like the ones Rep. Conyers’ Government Operations Committee chaired in 1992, followed by other hearings periodically until CAFRA finally passed in 2000. Congress needs to hear testimony from victims and forfeiture lawyers who have experienced first hand the abuses of forfeiture, so it can understand what must be done to fix this dysfunctional system — growing more dysfunctional every year as forfeiture revenues skyrocket.
The reform bill needs to be based on thorough analysis of the myriad problems. Easy Band-Aid solutions will not cure the problems.
I hope everyone whose interest in this issue was piqued by the recent and not very accurate media storm will read up on the issue and join us in asking for real forfeiture reform.