LISTEN TO TLR’S LATEST PODCAST:
Kentucky conservative Senator Rand Paul reintroduced S. 642, the FAIR (Fifth Amendment Integrity Restoration) Act on Wednesday. The intention of the bill is to protect property owners’ rights and restore the Fifth Amendment’s role in civil forfeiture proceedings. Rep. Tim Walberg (R-MI) has introduced companion legislation (H.R. 1555) in the U.S. House of Representatives, read an official statement from his office on Thursday.
Specifically, the bill looks to target and limit civil asset forfeiture of citizens who have not been convicted of a crime.
“The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime,” said Paul in his statement. “The FAIR Act will protect Americans’ Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process. It guards against abuse while maintaining the ability of courts to order the surrender of proceeds of crime.”
“Over the past few years, we’ve seen a wave of stories where the government unjustly seized property from innocent Americans without charging them with a crime,” explained Rep. Walberg, in the same statement. “These types of abuses of civil asset forfeiture laws should be a clarion call to reform the system and uphold the constitutional rights of the American people. That’s why I’m committed to championing the FAIR Act, which includes comprehensive and bipartisan reforms to limit the scope of the government’s forfeiture powers and protect individual rights.”
The “FAIR Act” has the backing of some major organizations in politics, including Heritage Action, the American Civil Liberties Union, Institute for Justice, FreedomWorks, National Federation of Independent Business, National Association of Criminal Defense Lawyers, Drug Policy Alliance, Americans for Tax Reform, and Campaign for Liberty, according to Paul’s statement.
Dr. Rand Paul’s S. 642, the Fifth Amendment Integrity Restoration (FAIR) Act:
Ø Eliminates “Equitable” Sharing: The federal “equitable” sharing program allows state law enforcement officers to turn seized property over to federal officials for forfeiture—and get up to 80% of the proceeds of the forfeited property. The FAIR Act ends “equitable” sharing and ensures that law enforcement cannot ignore state law.
Ø Restores Principle of “Innocent Until Proven Guilty”: Under current law, federal law enforcement agencies may take property suspected of involvement in crime without charging the property owner with a crime. The FAIR Act places on the government the burden to show that a property owner consented to his property being used in a crime by a third party (or that the property owner was willfully blind to the criminal activity).
Ø Requires Clear and Convincing Evidence: Under current law, the government need only prove by a preponderance of the evidence that a defendant’s property was used for an illegal purpose to forfeit the property. The FAIR Act would require that the government prove its case by the higher standard of clear and convincing evidence.
Ø Protects the Right to Counsel: Under current law, property owners can receive appointed counsel due to indigency only if (1) they request it, and (2) their home has been seized. The FAIR Act would ensure that owners have the opportunity to receive representation in all civil forfeiture proceedings.
Ø Removes the Profit Incentive: Law enforcement should be motivated by public safety, not financial rewards. The FAIR Act would restore the rule in which the proceeds of forfeiture go to the Treasury’s General Fund, where Congress can appropriate the money for any purpose.
Ø Reforms IRS Seizures: The FAIR Act requires that the IRS prove that the defendant knowingly deposited funds with criminal intent before they can seize the property. It also requires that a probable cause hearing be held no later than 14 days after the IRS seizes funds under the pretense of a structuring violation.
Ø Enacts Strong Reporting Requirements: The Department of Justice will be required to compile and publish the percentage of its seizures that were subjected to civil and criminal asset forfeiture.
The push against civil asset forfeiture has been gaining momentum as just the other day, sitting Supreme Court Justice Clarence Thomas has questioned its necessity, specifically highlighting the procedure’s effect on minority groups.
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” Thomas wrote. “Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home,” Thomas told the Huffington Post.
The value collected by law enforcement departments via civil asset forfeiture has bloomed wildly since the mid 80’s when it collected roughly $93.7 million in the US, to today where it collects well over $2.5 billion.