U.S. Representative John Conyers Introduces Comprehensive Forfeiture Reform Bill -- by Judy Osburn, F.E.A.R. Chronicles, Vol 2. No. 1, (November, 1993) John Conyers announced his intention to reform federal forfeiture statutes stating: "A law designed to give cops the right to confiscate and keep the luxury possessions of major drug dealers mostly ensnares the modest homes, cars and hard-earned cash of ordinary, law-abiding people. This was not the way it was supposed to work." Conyers fulfilled his promise to introduce comprehensive reform on October 22. The Asset Forfeiture Justice Act (HR 3347), like Henry Hyde's bill, provides for appointment of counsel for those who cannot afford representation; abolishes cost bonds; extends claimants' filing deadline from 10 to 60 days; and allows claimants to sue the government for damages caused by negligent handling of property in its custody. In addition, Conyers' bill addresses a host of other problems built into civil forfeiture law. First, it requires that a property owner be convicted of the crime upon which the forfeiture is based before property may by forfeited. The bill abolishes in rem (against a thing) forfeiture proceedings. Rather, forfeiture actions must be in personam (against a person), thereby extending constitutional due process protections to property owners. The bill specifies the right to jury trial in all forfeiture cases. An adversarial hearing prior to seizure is another due process requirement the bill codifies. At this preliminary hearing the government must show there is cause to believe the property is subject to forfeiture, and that a substantial probability exits that failure to seize the property pending trial would result in the property being destroyed, removed or otherwise made unavailable. The government must also show that its need to preserve the property outweighs the resulting hardship to any claimant. The bill contains some exceptions (detailed below) to the pre-seizure hearing requirement. In those exempted cases a hearing in which the claimants have an opportunity be heard is required immediately after seizure. If the seizure order is denied by the court the property must immediately be returned to claimants. HR 3347 requires proportionality and a substantial connection between the property and the offense in drug related cases. It prohibits forfeiture of property valued at more than the financial gain derived from, or loss caused by the drug violation. Also, conveyances and real property would be subject to drug related seizure only if they were either purchased with illegal proceeds or if the property was primarily used to facilitate a drug violation. (The bill substitutes "primarily used" for the present phrase "used, or intended to be used, in any manner or part.") And, only those parts of real estate that are actually used in the offense would be forfeitable, rather than the entire estate. It designates at least 50% of all forfeited proceeds to be used for community based crime prevention programs, drug treatment and education. No more than 10% may be spent on administrative costs. And all forfeiture proceeds transferred to local agencies shall go directly to state treasuries to be distributed according to state law. This will eliminate the financial incentive that distorts law enforcement goals (the "Sheriff of Nottingham Syndrome"), yet allows police to be funded with forfeiture revenues. It provides that low value real estate that is forfeited on the basis of drug violations be made available for a nominal fee to tax-exempt community-based crime control, housing, or educational organizations. The bill also limits forfeiture "adoptions" by prohibiting state agencies from transferring drug-related forfeiture cases to the federal government for the purpose evading local laws which limit the use or disposal of forfeiture proceeds. And, because drug-related forfeitures will require a federal conviction of the property owner, it will no longer be possible to transfer a forfeiture based upon State health and safety code violations to the federal courts. The bill exempts property from forfeiture that has been either paid or pledged as payment for attorney fees. It requires notice be sent to owners and lienholders within 60 days of seizure. It establishes reporting requirements regarding the circumstances of each seizure, including the race, national origin, gender and age of the owners of seized property. It also requires accountability for forfeiture proceeds distributed by States, as well as an annual report to Congress by the Attorney General detailing administrative and contracted costs. It limits the total payments to individual informants to $250,000 per year. It abolishes the "relation-back doctrine" which presently gives title to the government at the moment property is involved in criminal activity, thereby jeopardizing the property rights of lien holders and subsequent purchasers. The bill vests right, title and interest to the government only after a verdict in the government's favor. It requires property be returned to owners immediately after a judgment is entered in favor of the claimants, or within one year following seizure if no court action is filed by the government. It prohibits any forfeiture action from being commenced more than one year after the date of the offense, unless a stay pending related criminal proceedings is granted. In the latter case the forfeiture action must commence within a year after completion of the criminal proceedings. The bill expands federal forfeiture law in one area. It adds a provision that makes any firearm used or intended to be used to facilitate a drug crime forfeitable. It also gives law enforcement the power to seize property without a court order by exempting seizures that are "incident to an arrest or a search under a search warrant" from the pre-seizure hearing requirement. Other exemptions include: property that has been previously awarded to the United States; cases in which there is probable cause to believe the property is dangerous to public health; or when there is probable cause to believe the delay caused by the need to obtain a court order would frustrate the seizure. Still, owners of property exempted from a pre-seizure hearing must be given an opportunity for a prompt hearing, and the property must be immediately returned if the government fails to obtain a seizure order at that hearing. Some of the bill's reforms apply to all federal civil forfeiture proceedings, while other changes apply only to drug related forfeitures. This is because present civil forfeiture laws are scavenged from admiralty law. The various forfeiture statutes refer back to Customs regulations designed to enforce the collection of import duties. Procedural changes such as notices, filing deadlines, placement of the burden of proof and most other due process reforms, as well as property maintenance and disposition regulations are codified in the Customs provisions upon which federal civil (in rem ) forfeiture actions are based. However, some reforms, such as the requirement of proportionality between the forfeiture and the offense, as well as other limitations on what property is subject to forfeiture, must be codified into each forfeiture statute. The bill injects these reforms by amending the Controlled Substances ActÄby far the most widely used and abused forfeiture statutes. Most of Conyers' reforms are procedural and apply to civil forfeitures in general. The requirement of a criminal conviction of the owner prior to seizure and, most importantly, the elimination of in rem forfeiture proceedings will extend to property owners all the protections provided by the Constitution. Additionally, the proportionality amendments to the Controlled Substances Act will give courts a guideline for applying the Eighth Amendment to individual non-drug related forfeiture cases. Passage of the Asset Forfeiture Justice Act, HR 3347, will make clear Congress' intent to limit forfeitures to property which is substantially connected to the crime and is valued at or below the value of the property involved in the offense.