What is Forfeiture and why do we FEAR it?
"Civil asset forfeiture has allowed police to view all of America as some giant national K-Mart, where prices are not just lower, but non-existent - a sort of law enforcement 'pick-and-don't-pay."
Forfeiting Our Property Rights:
Is Property Safe from Seizure?
by U.S. Rep. Henry Hyde, sponsor of the
Civil Asset Forfeiture Reform Act of 2000
"Findings suggest asset forfeiture is a dysfunctional policy. Forfeiture programs, while serving to generate income, prompt drug enforcement to serve functions that are inherently contradictory and often at odds with the demands of justice."
Drug Enforcement's Double Edged Sword:
An Assessment of Asset Forfeiture Programs,
by J. Mitchell Miller and Lance H. Selva, Esq.
||Donations to Forfeiture Endangers American Rights ("FEAR") are tax-deductible and badly needed. Please donate now!
Incredible as it sounds, civil asset forfeiture laws allow the government to seize property without charging anyone with a crime. Police can seize property first and hold it pending trial, which could be four to six years later. The government’s case for forfeiture can be based on allegations of illegal activity of someone other than the property owner. At trial the owner has to prove innocence – the government does not have to prove the property owner was guilty. Many forfeiture victims don’t have enough assets left after the seizure to hire counsel, yet the procedures are too complicated for property owners to successfully defend themselves.
Believe it or not it used to be worse. The government’s burden of proof at trial was a mere probable cause, the government could use hearsay to prove its case, and property owners had to pay a cost bond of 10% of the value of the property in order to have a right to a court hearing at all.
After 8 years of intense efforts by FEAR to reform the law, in April, 2000, we achieved the nation's first major reform with passage of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). The sponsor of the act, Rep. Henry Hyde, thanked FEAR in his speech to Congress on April 11, 2000: "I also must thank our former colleague Bob Bauman and Brenda Grantland of Forfeiture Endangers American Rights for their long and dedicated work on behalf of forfeiture reform."
Though many of the reforms we wanted most were stripped down and riddled with exceptions in the Senate compromise bill, for the first time since civil asset forfeiture laws were passed, under CAFRA:
- the government had to prove its case by a preponderance of the evidence;
- the government is liable for damages to seized property while it is detained;
- the court can order property returned to owners pending trial if the claimant can show ties to the community and that the detention is causing substantial hardship;
- the court can no longer require an owner to pay 10% cost bond just to contest the forfeiture in court;
- the court may appoint counsel for some indigent claimants; and
- claimants are entitled to attorney fee awards - making the government pay claimants' attorney's fees if the claimant substantially prevails.
The Senate compromise also added 200 or more new federal offenses to the list of offenses that trigger forfeiture.
Unfortunately some of CAFRA’s most important reforms have since been nullified by prosecutors and the courts. Even in those cases where CAFRA requires counsel for indigent claimants, judges have created exceptions to avoid appointing counsel. Attorneys’ fees are rarely reimbursed these days because the courts have created exceptions by construing “substantially prevail” to mean something other than winning your property back.
Rather than reining in aggressive forfeitures as Congress expected, after CAFRA was enacted federal forfeiture revenue skyrocketed from $470 million in 2001 to $6.5 billion in 2013. The abuses continued and multiplied.
Further changes are still urgently needed at both federal and state levels. Forfeiture reform legislation has been introduced in Congress. The bill is an improvement, but it can be a lot better.
As with CAFRA, the process of reforming federal forfeiture laws will likely take several years. It will take a strong grass-roots movement in order to stand up against the law enforcement lobbyists who are bent on giving law enforcement more powers and taking away due process rights from claimants.
Forfeiture Endangers American Rights led the 8 year effort that resulted in passage of CAFRA, and we need to do that again. However, the recession has decimated FEAR’s bank accounts. We desperately need funds just to keep the website maintained and updated. Please donate so FEAR can continue providing important information on the pending bills and research materials essential to forfeiture claimants and their lawyers.
FEAR is a non-profit organization dedicated to stopping the drift into tyranny that unfair forfeiture laws encourage. Donations made to FEAR Foundation are tax deductible.
Now is the time ask Congress to pass a new federal forfeiture reform law to:
Prevent seizing agencies from treating the filing of a petition for remission as a waiver of judicial remedies;
- Establish the right to trial by jury for all forfeiture victims, including third parties in criminal forfeiture cases;
- Require all seized vehicles to be released to the owner pending trial;
- Provide court appointed counsel for indigent victims in all forfeiture cases;
- Require a criminal conviction of the owner before property may be forfeited;
- Give third parties in criminal forfeiture cases more rights including the right to a jury trial, and eligibility for CAFRA attorney's fees;
- Prohibit federal adoption from being used to circumvent state laws that are more favorable to victims; and
- Eliminate the fiscal incentives that corrupt law enforcement priorities.