by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In my previous newsletter, I called Eric Holder’s January 16th order modifying the DOJ’s civil asset forfeiture policy "a significant step in the right direction," and I encouraged my readers to join me in hoping, not only that more reform would follow but also that Holder’s order might mark "the beginning of the end for this ‘stain on American criminal justice.’" I’m happy to report that now, thanks to a bill introduced last Saturday by Sen. Rand Paul (R-KY), we have even more reason to be hopeful.
As I explained last week, civil assert forfeiture laws empower law enforcement agencies to seize property that is "associated" with criminal activity without having to charge the owner with a crime. As I also explained, there are a lot of problems with these laws, problems that badly need to be addressed. Welcome though it is, Holder’s order only deals with one of those problems — the use of "adoptions" to encourage participation by state and local law enforcement agencies in federal forfeiture programs — and it only does so by partially changing the way the agency administers existing federal forfeiture law. Compared to this, Sen. Paul’s bill is revolutionary. It addresses three of the worst problems with civil asset forfeiture, and it does so by making fundamental changes to the law itself.
The first problem addressed by Paul’s bill is the standard of proof that applies in civil asset forfeiture cases. As I previously noted, under current law:
The standard of proof is not, as in a criminal trial, "beyond a reasonable doubt;" instead, the "preponderance of evidence" standard applies. What this means is that the government need not present solid and convincing evidence that the property has criminal associations. In order to win at trial and keep the seized property, all it must do is show that the evidence makes this claim slightly more likely than not.
Paul’s bill does not go so far as to require proof beyond a reasonable doubt, but it does significantly raise the government’s burden by requiring it to provide "clear and convincing evidence" that the forfeited property is associated with criminal activity. Imposing this intermediate standard would not only make it easier for innocent owners to recover their property after it has been improperly seized; it would also discourage law enforcement agencies from making improper seizures in the first place.
The second problem addressed by Paul’s bill is the fact that under current law even completely innocent owners can lose their property as a result of someone else’s criminal act. As I previously noted, many an innocent homeowner has lost his or her home because a child or grandchild was alleged to have committed a minor drug offense on the property. Paul’s bill would prevent such injustices by requiring the Government to show that there was a substantial connection between the property and the offense and that the owner of the property either intentionally used the property in connection with the offense, or knowingly or willfully allowed someone else to use it in that way.
The third problem addressed by Paul’s bill is perhaps the worst of all — the perverse incentives that are created when law enforcement agencies benefit directly from the use or sale of seized property. As I explained in my previous newsletter, the existence of such incentives perverts the proper relationship between the police and the public by turning the police into predators and the public into their prey. Under current federal law, these sorts of perverse incentives are a fundamental feature of the system: the proceeds from seized assets go directly to the DOJ’s Asset Forfeiture Fund and are then distributed "equitably" to the federal, state, and local agencies that participated in their seizure. Paul’s bill eliminates these perverse incentives by requiring that asset forfeiture proceeds go "to the Treasurer of the United States…for deposit in the General Fund of the Treasury."
Rand Paul has addressed the problem of civil asset forfeiture abuse before. In fact, he submitted an identical bill last year, but it died in committee. Whether it will get any further this session remains to be seen. Nevertheless, support for reform seems to be growing rapidly. Paul’s new bill comes hard on the heels of announcements that federal forfeiture programs are under review by both the DOJ and by Congress. Fundamental reform must surely come eventually. Paul’s bill gives us one more reason to hope it will come sooner rather than later.
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