While Holder’s recent announcement about limiting federal adoption of civil forfeiture got a lot of people excited, it was important to realize (as we did) that the impact was very limited.
The danger was that people would think that Holder’s memo constituted real reform, and that we could relax. Fortunately, real reform is still being pushed.
As Jacob Sullum reports:
Today Sen. Rand Paul (R-Ky.) and Rep. Tim Walberg (R-Mich.) reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act, which would revise federal civil forfeiture law to give property owners more protection and reduce the profit incentive that encourages law enforcement agencies to seize assets. […]
The FAIR Act abolishes the Justice Department’s Equitable Sharing Program, which allows police to evade state limits on forfeiture by using federal law to confiscate people’s property.[…]
The FAIR Act requires the government to prove by “clear and convincing” evidence that property is subject to forfeiture. […]
In cases where the government argues that an asset is forfeitable because it was used to facilitate criminal activity, the FAIR Act puts the burden on the government to show, by clear and convincing evidence, that the owner himself used the property for illegal purposes or that he “knowingly consented or was willfully blind to the use of the property.” […]
The FAIR Act would allow [structuring] forfeiture only when the owner “knowingly” sought to avoid bank reports of “funds not derived from a legitimate source.”[…]
In determining whether a forfeiture is constitutionally excessive, a court is supposed to consider not only “the seriousness of the offense” (as under current law) but also “the extent of the nexus of the property to the offense,” “the range of sentences available for the offense,” “the fair market value of the property,” and “the hardship to the property owner and dependents.” […]
The FAIR act expands the current guarantee of legal representation for property owners who cannot afford it from forfeitures involving primary residences to all forfeitures. […]
This is real reform, and it needs to happen.
We need to really keep up the pressure on our representatives to stop the practice of theft by law enforcement.