With little fanfare and no opposition, a watered-down version of the Civil Asset Forfeiture Reform Act passed the Senate unanimously this week.
Years in the making, the Act, sponsored in the Senate by Orrin Hatch (R-UT) and Patrick Leahy (D-VT), shifts the burden of proof from the property owner to the federal government when the police seeks to seize property linked to crimes such as drug trafficking.
Supported by a wide spectrum of groups, including the US Chamber of Commerce, the American Civil Liberties Union and the National Rifle Association, the original bill sponsored in the House by Reps. Hyde and Conyers, which passed last June by vote of 375 to 48, was amended to assuage the concerns of the Justice Department and law enforcement interests.
The bill's latest incarnation, S. 1931, will go back to the House for a final look-over before rapid implementation. "Rep. Hyde may be able to avoid a conference committee by getting the House to agree to the compromise version," predicted Brenda Grantland, president of Forfeiture Endangers American Rights (FEAR), a group that advocates for civil forfeiture reform at both state and federal levels. "This would speed up the effective date of the new law. Since [Attorney General] Janet Reno agreed to this compromise, it presumably has the President's support, and should be signed into law without further ado after the different versions are reconciled."
The biggest change in the bill had to do with the burden of proof the government has to shoulder in forfeiture proceedings. The House version of the bill stated that the government must have "clear and convincing evidence" that property is being used in an illegal act. Currently, the burden of proof rests entirely with the property owner.
But the Clinton Justice Department said that "clear and convincing evidence" sets too high a bar for federal prosecutors. House and Senate lawmakers Patrick Leahy, Orrin Hatch and Henry Hyde met last week with Attorney General Janet Reno to work out a compromise that now states the government must make its case "by a preponderance of the evidence."
Rachel King, who worked on the bill for the ACLU, told The Week Online, "We certainly would have liked a stronger bill, but I think it is amazing we got anything through the Senate."
Other property owner protections the bill provides include: enabling a judge to release property to the owner if continued government possession poses a substantial hardship; extending the time a property owner has to challenge a seizure in court; ending the requirement that a person seeking to recover property post a bond with the court; and providing for court-appointed counsel to represent indigent property owners.
The court-appointed counsel provision and the elimination of the cost bond were important victories for reformers. "This will go a long way toward leveling the playing field for poor and middle class forfeiture victims -- particularly innocent owners -- and will force the US Attorney's Office to take a look at the merits of the case, instead of having the seizing agency win most cases by default when the claimant fails to file a claim and cost bond on time," said Grantland.
Still, FEAR is not completely pleased with the bill as it stands. "The Hyde bill, the one that was passed by the house, isn't perfect, but it is much better than this," Grantland said. "Hyde needed to make compromises to make sure the president wouldn't veto the bill. We think 'clear and convincing evidence' is required because (forfeiture) is punishment." Still, she added, "'Preponderance' will make sure more people are able to go to trial, because there won't be as many cases in which judges grant summary judgments for the government based on the flimsy burden of proof the government has to show. Now, the government will have to go to court over these cases and they're not going to want to go to the trouble over these $1,000 seizures."
Why would law enforcement agree to such a law? "They got concessions on the other end," Grantland said. "In exchange for protecting innocent people and giving them due process, they're taking away some of the advantages that criminal defendants who have their property seized have. It is leveling the playing field; taking away some of the advantages that criminal defendants have in criminal forfeiture and increasing the protections for people not charged with a crime."
King doesn't see this reform as much of a concession, and noted, "They [DOJ] were losing on this and they tried to cut their losses as much as they could." But, King continued, "they still have way more power than they should have."
When asked whether the unanimous passage of this bill signified a change in the war on drugs, Jonathan Lamy, an aide to Senator Leahy, told The Week Online, "I think it signifies everyone was concerned about overzealous confiscation of property. The question was finding the right balance between law enforcement and property owners."
With the passage of this legislation, FEAR is not finished with their work. They want to take law enforcement back in time to 1984, a time before our current drug civil forfeiture statutes were passed, enabling, as Grantland put it, "The cops to keep the proceeds. It became an overnight boom industry for the cops. The ones seizing property getting to keep it is a total conflict of interest. That's going to be the hardest battle of all, because the cops are well funded from assets they've seized."