A new law taking effect this week, which changes the way federal
agencies can seize personal property, is being hailed as a major step
forward in addressing widely condemned abuses of the forfeiture process
by law-enforcement authorities.
The passage of the Civil Asset Forfeiture Reform Act of 2000 was the
culmination of a seven-year crusade by
Rep. Henry Hyde, R-Ill., the powerful chairman of the House Judiciary Committee, who waged a war of attrition with the Department of Justice and local law-enforcement authorities to get the statute enacted.
To accomplish this feat, Hyde had to cobble together an unusual coalition of liberal and conservative sponsors, including the main players on both sides of the Judiciary Committee’s impeachment brawl last year: Hyde, ranking Democrat Rep. John Conyers of Michigan, fiery conservative Rep. Bob Barr, R-Ga., and outspoken liberal Democrat Rep. Barney Frank of Massachusetts. The bill,
H.R. 1658, passed through the sharply divided Judiciary Committee 27-3 and sailed through the House in July 1999 by a wide margin of 375-48.
On the Senate side, the bill was then carried by Sen. Orrin Hatch, R-Utah, and Vermont Democrat Sen. Patrick Leahy, where it passed in March under a unanimous-consent motion. The bill was signed into law by President Clinton on April 25 and went into effect Wednesday.
The bill also drew support from all quarters of the political spectrum, including the American Civil Liberties Union, the National Rifle Association, the American Bar Association, Americans for Tax Reform and the Marijuana Policy Project.
William Moffitt, president of the
National Association of Criminal
Defense Lawyers, said the forfeiture reforms were long overdue.
“Americans have suffered too long as a result of unfair forfeiture of their homes, autos and other personal belongings near and dear to them,” Moffitt said.
Meanwhile, law enforcement officials are predicting gloom and doom over the new law’s impact.
“This is a horrible bill,” said Gene Voegtlin, legislative counsel for the International Association of Chiefs of Police, in an interview with the Washington Post shortly after the bill was passed. “We know there have been high-profile cases of abuse, but these laws aren’t about taking property from innocent grandmothers.”
It appears the new law will affect government coffers. An analysis of the bill’s financial effect by the Congressional Budget Office estimated that governmental receipts deposited into the Assets Forfeiture Fund and the Treasury Forfeiture Fund would decrease by about $115 million each year, beginning in fiscal year 2001. That is a sizable chunk of the forfeiture funds obtained by the federal government each year — revenue that amounted to $449 million in 1998, well up from the $27 million garnered in 1985.
The new procedures controlling asset forfeiture created under the reform package include:
- Requiring warrants, or requiring that the government proceed by recognized exception to the warrant requirement of the Fourth Amendment, to obtain property for forfeiture.
Eliminating the cost bond requirement, whereby claimants had to post bond in an amount of the lesser of $5,000 or 10 percent of the value of the seized property (but not less than $250) to preserve the right to contest a forfeiture.
Shifting the burden of proof in asset forfeitures squarely to the government by requiring the government to show complicity by a “preponderance of the evidence.”
Providing a uniform definition of the “forfeitable proceeds” of criminal acts.
Expanding the time during which a person whose assets have been seized may file a claim.
Requiring seizing agencies to comply with strict notice and time requirements.
Allowing for release of seized property in certain hardship cases.
Allowing the appointment of counsel for indigent claimants.
Requiring payments of reasonable attorney fees in cases where the claimants prevail.
Allowing an action for damages against the government for harm to seized property while under government control.
In order to get the bill through all of the legislative hurdles, Hyde had to change strategy by refusing to deal with Justice Department lobbyists, who had been successful in sabotaging and gutting similar bills on previous occasions.
However, while some observers are applauding the efforts of Congress to finally address the problem of forfeiture abuse, many are concerned that the new law doesn’t go far enough to stem the abuses by both local and federal law-enforcement authorities.
“I think it’s a good first start, but these are very modest changes compared to what we really need,” said Rachel King, legislative counsel for the
ACLU’s Washington, D.C., office. She did clarify that while the ACLU supported the Hyde bill, the organization’s stated position is for the complete abolition of civil asset forfeiture, and that criminal forfeitures ought to be conducted with the fullest amount of due process possible.
King noted that while the burden of proof for civil forfeiture proceedings is for the first time shifted to law enforcement, the “preponderance of the evidence” standard is much weaker than the “clear and convincing evidence” standard that was part of the original language of the bill. That change was enacted as a Justice Department amendment forwarded by Reps. Asa Hutchinson, R-Ark., and Ed Bryant, R-Tenn., both former U.S. attorneys.
What concerns civil liberties advocates most — and was never addressed in the Hyde bill — is the practice of adoptive forfeiture, where local and state law-enforcement agencies use the federal government to seize property to circumvent state laws that dedicated forfeiture revenues to certain areas of the state budget, such as education. After federal authorities seize the property, the funds are divided with a portion of the money kept by the federal agency, and up to 80 percent of the proceeds given directly to the local departments without regard to the mandated provisions for dividing forfeiture revenues found in state law.
A yearlong series of reports published by the
Kansas City Star has documented the practice occurring in states throughout the country.
“As long as this provision and opportunity exists for local police departments, there is going to be strong incentive for police to use forfeiture to increase their budgets,” King said. “Stopping adoptive forfeiture would drastically change the process and put teeth into the existing state laws, which are generally stronger than federal law.”
Congressional officials told WorldNetDaily compromise on the burden of proof and adoptive forfeiture provisions was necessary to get the bill through Congress and to prevent a presidential veto.
“There was no other way to get it done on a consensus basis,” said Julie Katzman, a senior aide to Leahy. “The fact that we got anything done is extraordinary. We knew it was going to be a tough task, because this cuts heavily into the revenues of many law-enforcement departments.”
Katzman acknowledged that adoptive forfeiture was a significant problem and said one way states could remove the incentive to use forfeiture to bolster law-enforcement budgets would be for legislatures to reduce local departments’ state funding dollar for dollar for their forfeiture receipts.
“We shouldn’t be facilitating local and state agencies laundering money through the federal government,” she told WorldNetDaily. “It’s a problem that we created, but there is no question that the states could enforce their own laws to stop this practice.”
Katzman said legislation addressing these additional issues would not be forthcoming this legislative session, and that the question of which party will control the houses of Congress would factor into future legislation on the matter.
Another consideration will be that Hyde, the congressional champion of forfeiture reform, will no longer be chairman of the House Judiciary Committee after this year due to House Republican rules that limit the tenure of committee chairman.