WASHINGTON—Today, Sen. Rand Paul, R-Ky., and Rep. Tim Walberg, R-Mich., introduced the Fifth Amendment Integrity Restoration Act of 2015. The FAIR Act would correct serious defects in current federal civil forfeiture law that place enormous burdens on owners faced with the loss of their property while permitting law enforcement officials to profit from forfeiture. The bill is introduced in the wake of growing criticism and outrage about the government’s civil forfeiture practices.
“The FAIR Act would provide essential protections for innocent property owners who have for decades lost their cash, cars, homes and other property without being convicted of or even charged with a crime,” said Scott Bullock, a senior attorney at the Institute for Justice, the nation’s leading legal advocate against civil forfeiture. “This legislation would also go a long way toward stopping the perverse practice of policing for profit, where for the past 30 years federal law enforcement officials have been able to keep for their own use the property they seize and forfeit from Americans.”
Under federal civil forfeiture laws, law enforcement agencies can forfeit property merely suspected of involvement in criminal activity. Unlike criminal forfeiture, however, civil forfeiture allows the government to permanently seize and keep property without charging—let alone convicting—anyone of a crime.
The FAIR Act would enact simple, commonsense but urgently needed changes to federal civil forfeiture law.
- The FAIR Act would curb the profit incentive by prohibiting the Department of Justice from retaining seized assets for its own use. Property forfeited by the DOJ would have to go to the General Fund of the Treasury. That was where forfeited property and funds were sent before the law was changed in 1985. Since the profit incentive was put into the law, forfeiture revenue—and abuses—have skyrocketed.
- The bill would abolish the equitable sharing program for civil forfeiture, which allows local and state law enforcement agencies to circumvent stronger state restrictions by teaming up with federal agencies to pursue forfeitures under more lucrative federal law.
- It would require the government to prove property is subject to forfeiture by “clear and convincing” evidence, instead of a mere “preponderance of the evidence” which is currently required.
- It would restore the principle of “innocent until proven guilty” by shifting the burden from the property owner to the government to prove that the owner had knowledge that his property was used in criminal activity.
- The FAIR Act would provide indigent property owners with appointed counsel in civil forfeiture proceedings.
- It protects innocent small business owners by codifying the new IRS policy limiting prosecution of “structuring” cases to those involving funds not derived from a legitimate source. Anti-structuring laws were aimed at catching serious criminals who made frequent, small cash transactions to avoid bank reports to the U.S. Treasury concerning large cash transactions. Increasingly, those laws have been used to take money from innocent small businesses who deal with a lot of cash.
- The FAIR Act would insert a criminal intent requirement that individuals knowingly“structured” their cash transactions for the purpose of evading currency reporting requirements.
- It includes a hearing requirement to allow individuals and small business owners a prompt opportunity to contest the seizure of their funds for alleged structuring violations.
The Institute for Justice is leading the fight against civil forfeiture nationwide. To learn more, visitendforfeiture.com.