Bills
| 3.23.22

Should There be More Restrictions On Federal Civil Asset Forfeiture? (H.R. 1795)

Do you support or oppose this bill?

What is H.R. 1795?

(Updated March 27, 2019)

This bill — known as the DUE PROCESS Act of 2017 — would amend the federal criminal code to revise provisions related to federal civil asset forfeiture cases. It’d raise the evidentiary standard in such cases from “preponderance of the evidence” to “clear and convincing evidence; provide for the appointment of counsel for indigent property owners who can’t hire their own attorney; and provide for the recovery of attorney’s fees in cases where the claimant prevails; while also adding notice requirements.

This will would also require the Department of Justice (DOJ) to annually audit federal civil forfeiture cases, and establish a publicly available database tracking such cases.

Finally, the bill would amend the federal judicial code to authorize DOJ to use funds from the DOJ Assets Forfeiture Fund to pay for costs associated with a seized animal, including transportation, shelter, care, veterinary services, and humane euthanasia.

Argument in favor

Civil asset forfeiture violates property rights and due process. In its current form, it is improperly used as a way for police departments and the federal government to take private property to pad their bottom lines. There should be greater protections against this violation of civil rights.

Argument opposed

Civil asset forfeiture allows local and federal law enforcement to seize assets related to criminal enterprises. This is an important tool for defunding organized crime, taking back profits from criminal enterprises, and preventing new crimes from being committed.

Impact

Property owners in civil forfeiture cases; federal law enforcement; and the Department of Justice.

Cost of H.R. 1795

A CBO cost estimate for this bill is unavailable.

Additional Info

In-Depth: Rep. James Sensenbrenner (R-WI) Introduced this bill to increase transparency in the civil asset forfeiture process, add protections for innocent property owners, and place a higher burden of proof on the government:

“Civil asset forfeiture is a critical component of the overall effort to fix our broken criminal justice system, and the DUE PROCESS Act makes common sense changes to federal forfeiture laws that help innocent Americans. Its reintroduction today brings us one step closer to meaningful reform that will tamper abuse and protect citizens’ Constitutional rights.”

Speaking to the Washington Examiner about his bill, Rep. Sensenbrenner added that currently, too many police departments use the cash they size, along with proceeds from the sales of seized property, as a “slush fund” to bolster their bottom lines. This, he argues, is not appropriate. Civil asset forfeiture is not intended to be a “way to expand the budgets of various law enforcement agencies.”

Law enforcement officials have historically defended civil forfeiture as a way to limit the resources of drug cartels and organized-crime groups. In a statement announcing the Justice Department’s rollback of a series of Obama-era curbs on civil asset forfeiture in July 2017, Attorney General Jeff Sessions called civil asset forfeiture an important tool in law enforcement’s toolkit. He added that encouraging civil asset forfeiture is appropriate “in order to hit organized crime in the wallet.” In remarks to law enforcement officials, Attorney General Sessions defended civil asset forfeiture by saying:

“As any of [members of law enforcement] will tell you and as President Trump knows well, civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels. Even more importantly, it helps return property to the victims of crime. Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits, and better training. In departments across this country, funds that were once used to take lives are now being used to save lives. It also removes the instrumentalities of crimes, such as illegal firearms, ammunition, explosives and property associated with child pornography from criminals—preventing them from being able to use these tools in further criminal acts.”

This legislation has the support of 25 cosponsors of this bill, including 11 Republicans and 14 Democrats. It has the support of the American Bar Association, Institute for Justice (IJ), and FreedomWorks -- a conservative and libertarian advocacy organization. The ACLU, which is opposed to civil forfeiture in general, notes that some polls have shown 80% of Americans oppose the practice. ACLU legislative counsel Kanya Bennett, commenting on Attorney General Jeff Sessions’ rollback of Obama-era civil forfeiture reforms in July 2017, stated that “civil-asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep.”

Rep. Sensenbrenner previously introduced this bill in the 114th Congress, where it was approved by the Judiciary Committee before stalling and not reaching the floor before the 114th Congress adjourned in December.


Of Note: This bill builds upon changes made in the 2000 Civil Action Forfeiture Reform Act, which provided a more justice and uniform procedure for Federal civil forfeitures.

In March 2017, the U.S. Department of Justice Office of the Inspector General (OIG) released a report criticizing the department’s cash seizure and forfeiture activities. The report found that the DOJ could not “effectively assess whether asset forfeiture is being appropriately used,” and that this was especially true for the Drug Enforcement Agency (DEA), where “many of the DEA’s interdiction seizures may not advance or relate to criminal investigations.” The report noted that “for more than half of the interdiction seizures we sampled, which were seized without a warrant, the DEA could not verify whether they had advanced a criminal investigation.” Ultimately, the OIG concluded that “risks to civil liberties are particularly significant when seizures that do not advance or relate to an investigation are conducted without a court-issued seizure warrant, the presence of illicit narcotics, or subsequent judicial involvement prior to administrative forfeiture.”

According to the Institute for Justice, between 1986 and 2014, funds deposited into the DOJ’s Assets Forfeiture Fund have increased 4,667%, from $93.7 million to $4.5 billion.

Civil forfeiture has existed in some form since the colonial era, although most current laws date to the height of the War on Drugs in the 1980s.


Media:

Summary by Lorelei Yang

(Photo Credit: iStock / alfexe)