Asset Forfeiture

Legislative Comparison: Civil Asset Forfeiture Reform Act of 2000 (CAFRA) to Current Law

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IACP Position on Asset Forfeiture

Recent Developments

On Thursday, March 23 the Senate Judiciary Committee approved a revised version of H.R. 1658, the Civil Asset Forfeiture Reform Act of 2000. H.R. 1658 was originally introduced by Rep. Henry Hyde and was overwhelmingly approved by the U.S. House of Representatives in June of 1999. The IACP strongly opposed the original version H.R 1658 and believed that the provisions of the legislation would severely limit the ability of law enforcement agencies to perform effective asset forfeiture of criminal proceeds.

The Senate committee's action follows months of protracted, and sometimes tense, negotiations involving supporters of opposing forfeiture bills. The main participants in this negotiation were:

• Senator Orrin Hatch (R-UT) and Senator Patrick Leahy (D-VT) who had introduced S. 1931 ( S. 1931 was very similar to Rep. Hyde's original bill); and,
• Senator Sessions and Senator Charles Schumer (D-NY) who had introduced S. 1701. S.1701 was drafted to modify current forfeiture laws to respond to concerns regarding fairness and due process without undermining law enforcement's ability to effectively seize the assets of combat drug dealers and other criminals. S. 1701 was strongly supported by IACP

The revised legislation approved by the Senate committee incorporates many of the provisions of S. 1701 and addresses many, but not all, of IACP's concerns with the original version of H.R. 1658. For example, under the revised bill:

• Burden of Proof: In forfeiture cases the government must establish that the property was subject to forfeiture by a "preponderance of the evidence". By contrast H.R. 1658 had originally used the much higher "clear and convincing" standard of proof.
• Statute of Limitations: After the government forfeits the property, a property owner will have 5 years in which to make a claim on the property. H.R. 1658 had originally provided the property owner with 11 years.
• Equitable Sharing/Adoptive Forfeiture: The revised bill makes no changes to current procedures governing equitable sharing of proceeds or the federal government's adoption of forfeiture initiated by state and local law enforcement agencies. By contrast, S. 1931 directed that State laws directing forfeited funds to non-law enforcement programs take priority.
• Destruction of Property to Prevent Seizure: The revised legislation makes it a crime to remove or destroy property to prevent seizure for forfeiture. The original legislation did not contain any provision on this issue.
• Fugitive Disentitlement: The revised legislation establishes that a claimant's status as a fugitive from justice is grounds for dismissal of their case contesting the forfeiture of their property. Currently, fugitives from justice can contest the seizure of their property.
• Attorneys Fees/Appointment of Counsel: The revised legislation provides the property owner with "reasonable fees/costs" if they substantially prevail in their case. In addition, the Legal Services Corporation is authorized to handle cases involving the seizure of the primary residence of indigents. The Attorney's fees and legal services cost will be paid from the Equal Access to Justice Fund. (The Equal Access to Justice Fund receives a separate appropriation from the U.S. Congress and is not funded from the DoJ Forfeiture fund. By contrast, the original legislation allowed any claimant to seek the appointment of a free counsel. The cost of these free counsels would be paid from the forfeiture fund (thereby depleting the amount available for the equitable sharing program)

However, despite these improvements the legislation still contains one provision that troubles the IACP. This is the elimination of the cost bond requirement. Currently, property owners who wish to contest a seizure must file a cost bond with the court that is equivalent to 10 percent of the value of the property seized or $5000, whichever is less. The purpose of the cost bond is to ensure that the court system is not overwhelmed with frivolous claims filed by individuals who are not really the owner of the seized property or who were involved in the underlying criminal offense. Opponents of the cost bond contend that it is unfair to require citizens to pay in order to have their day in court. In addition, they argue that the cost bond unfairly harmed poor individuals who could not afford the cost of the bond.

Both the IACP and the DoJ strenuously advocated for the retention of some form of "up front" mechanism that would serve to keep frivolous claims out of court. Unfortunately, despite the proposal of several modified cost bond approaches which addressed many of the concerns dealing with the inability of poor claimants to file their claim, the opponents of the cost bond were absolutely inflexible in their insistence that the cost bond be eliminated.

In the end, the Department of Justice agreed to the following alternative to the cost bond.

To file a claim, an individual must set forth, under penalty of perjury:

1. The specific property to be claimed
2. His/her ownership interest in the property (along with providing supporting documentary interest. e.g. deeds, car titles, etc.)
3. That his/her claim is not frivolous.

After the court hears the case, the judge may determine whether the individual's case was frivolous. If the judge determines that the claim was frivolous, he may impose a fine equal to what the cost bond amount would have been.

Despite DoJ's acceptance of this proposal, the IACP remains concerned over the elimination of the cost bond requirement. Throughout the debate on asset forfeiture reform, it has been the IACP's contention that the elimination of the cost bond requirement has the potential for damaging the effectiveness of the asset forfeiture program. The IACP is not convinced that the up-front certification requirement and post-hearing penalty provisions contained in this legislation will serve as a sufficient deterrent to prevent the filing of an excessive number of frivolous claims.

As a result of this concern, and despite the numerous improvements contained in the legislation, the IACP does not support H.R. 1658. However, the Department of Justice has repeatedly assured the IACP that they will work to ensure that the effectiveness of the asset forfeiture program is not diminished as a result of the elimination of the cost bond. As a result of these assurances, the IACP will not actively oppose this legislation.

It is anticipated that the Senate will shortly approve the revised version of H.R. 1658. Since, Rep. Hyde has already agreed not to amend the legislation any further, it is expected that the legislation will quickly gain House approval and be cleared for presidential action sometime this spring.

Background Information

For example, the Sessions/Schumer bill would:

• Raise the burden of proof on the government in civil asset forfeiture cases to preponderance of the evidence from the current probable cause standard.
• Require the government to pay attorney’s fees in cases where a claimant receives a judgement.
• Establish a uniform innocent owner defense.
• Preserve and strengthen law enforcement’s ability to conduct effective highway and airport interdiction efforts by enumerating the factors needed to determine the nexus between seized currency and alleged drug activity

The sponsors of the legislation are Senators Jeff Sessions (R-AL), Joseph Biden (D-DE), Strom Thurmond (R-SC), Charles Schumer (D-NY), Dianne Feinstein (D-CA), Jesse Helms (R-NC), Max Cleland (D-GA), and Charles Robb (D-VA). In drafting this legislation, the sponsors worked closely with the IACP to ensure that the provisions of their bill would be acceptable to law enforcement

The proposed bill is intended to serve as the Senate alternative to H.R. 1658, the Civil Asset Forfeiture Reform Act which was approved by the House of Representatives on June 24. This legislation, which was introduced by Rep. Henry Hyde (R-IL), was strongly opposed by the IACP, the Department of Justice and other law enforcement organizations.

It is the IACP’s belief that H.R. 1658 would severely reduce the effectiveness of the federal asset forfeiture program thereby undermining one of the most powerful weapons law enforcement has in the war against drugs.

In contrast to the Hyde bill, the Sessions/Schumer bill, while making a few changes to current forfeiture laws, ensures that law enforcement will still be able to use federal forfeiture laws as an effective weapon to deprive criminals of the proceeds and instrumentalities of crime.

The Sessions bill is very similar to compromise legislation that was developed in conjunction with Rep. Hyde during the 105th Congress. However, Rep. Hyde eventually abandoned the compromise legislation and returned to his original bill.

The IACP did not support either the compromise legislation or Rep. Hyde’s original bill in the 105th Congress because of concerns over its impact on the ability of law enforcement agencies to perform effective asset forfeiture proceedings.

IACP’s main concern with civil asset forfeiture reform has been the question of whether to place the burden of proof on the government and modifying the current evidentiary standard of "probable cause". However, the Sessions/Schumer proposal addresses this concern and ensures that law enforcement will be able to continue performing effective asset forfeiture operations.

IACP Viewpoint

• Police Chiefs Support Sessions / Schumer Asset Forfeiture Reform Bill

IACP Actions

• Letter to Attorney General Janet Reno on the Civil Asset Forfeiture Reform Act of 2000 (3/22/2000)
• Letter to the Senate urging co-sponsors for the Sessions / Schumer Asset Forfeiture Reform Bill (October 18, 1999)
• Letter to Chairman Jeff Sessions (R-AL) and Ranking Member Joseph Biden (D-DE) of the Senate Subcommittee on Youth Violence in support of the Sessions / Schumer Asset Forfeiture Reform Bill (September 29, 1999)
• Letter to Juvenile Justice Conferees Opposing Inclusion of civil asset forfeiture provisions in juvenile justice legislation (August 27, 1999)
• Letter to Juvenile Justice Conferees Opposing Inclusion of civil asset forfeiture provisions in juvenile justice legislation (August 11, 1999)

Related Legislation

• S. 1701: Sessions / Schumer Civil Asset Forfeiture Reform Act
• H.R. 1658: Civil Asset Forfeiture Reform Act