S. 1701 is by no means a reasonable compromise between the recently passed Hyde bill (HR 1658) and current law, as cosponsors have been claiming. As you will see, S. 1701's token "reforms" are riddled with so many exceptions and loopholes, and hoops to jump through that they are virtually worthless to claimants, if not worse than current law. And, as we show in the companion chart comparing S. 1701's provisions to HR 1658's, S. 1701 adds a large number of provisions that expand the government's forfeiture powers and make the procedures worse for property owners than current law!
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| Section from HR 1658 | what HR 1658 provides | Comparable section in S. 1701 | What S. 1701 provides: |
| Sec. 2, new §981(j)(1)(A), §981(j)(1)(C) | administrative forfeiture process must be
commenced by serving notice within 60 days of seizure; government can obtain an extension of time only from a judge, and only on a showing of good cause for the delay; if government violates this rule they must give property back and may not commence forfeiture. |
Sec.3 - new
§981(l)(1)(A), §981(l)(1)(B), §981(l)(2) |
administrative forfeiture process must
commence w/in 60 days of seizure - but: they can obtain extension of time from the Attorney General, and if they violate this rule, the government only has to give the property back until they give notice to the claimant. (This remedy is useless!) |
| Sec. 2, new §981(j)(2)(B) | a person who is entitled to notice and who is not given notice is entitled
to void the forfeiture with
prejudice (the government can't start the forfeiture process over) |
Sec. 3 - new §981(l)(3)(B)-(D) | if court sets aside declaration of forfeiture for failure to give notice, government can start forfeiture process anew, even if property has already been disposed of by government; this statutory process becomes exclusive means of reviewing a bogus forfeiture without notice (this would eliminate current remedy under F.R.Crim.P. 41(e)) |
| Sec. 2 - new
§981(j)(2)(B) |
lengthens time for filing administrative claim to 30 days after administrative forfeiture notice (currently 20 days); claim need not be sworn | Sec.4a - new 19USC§1608 | lengthens time for filing administrative claim to 30 days, but it must be sworn and accompanied by cost bond |
| Sec. 2 - new
§981(j)(2)(F) |
eliminates cost bond (currently claimant must pay the seizing agency a bond of 10% of the value of the property, up to $5000, with $250 minimum, in order to have the right to contest the forfeiture in court.) | Sec.4a- new §1608(b),
new §981(d) |
preserves 10% cost bond (new §1608(b) is the same as current law!), but §981(d) allows claimant to avoid paying bond by pledging other property worth more than the bond, and allows the government to foreclose on pledged property |
| Sec. 2 -
§981(j)(2)(D) |
government must file forfeiture complaint within 60 days of filing of administrative claim (no cost bond required) | Sec.5 - new §981(m) | government must file forfeiture complaint within 90 days after receipt of claim & cost bond |
| Sec. 2 - new
§981(j)(3) |
lengthens claimant's time for responding to judicial forfeiture complaint - 30 days to file verified claim (current deadline is 10 days) with answer due 20 days after filing of verified claim | not in S. 1701 | |
| Sec. 2 - new
§981(j)(4) |
indigent claimants entitled to court appointed counsel under the Criminal Justice Act (currently there is no right to counsel for indigents, and most are forced to represent themselves or give up; most pro se litigants lose) | not in S. 1701 | |
| Sec. 2 - new
§981(j)(5) |
puts burden of proof on the government - by clear and convincing evidence (the burden of proof required to civilly commit mental patients) | Sec. 2 | puts burden of proof on the government by a preponderance of the evidence (51%) |
| Sec. 2 - new §981(j)(6)(A-B) | uniform innocent owner defense for owner who either did not know of illegal activity, or after learning of it, "did all that reasonably could be expected under the circumstances to terminate such use of the property." | Sec.10 - new §983
§983(c)(2) |
uniform innocent owner defense which makes it harder to prove innocence than current standards under most federal civil forfeiture statutes; in addition to the qualifications and exceptions listed below, it creates a presumption against innocent ownership ("a person shall be considered to have known that his or her property was being used or was likely to be used in the commission of an illegal act, if the Government establishes the existence of facts and circumstances that should have created a reasonable suspicion that the property was being or would be used for an illegal purpose.") |
| Sec. 2 - new
§981(j)(7) |
clarifies the definition of "did all that reasonably could be expected..." - claimant's cooperation with law enforcement officials may be used to show this but is not mandatory, and claimant is not expected to take steps he reasonably believes would endanger himself or others | Sec.10 - new §983(b)(1)(B) | doesn't exempt claimant who reasonably believes taking such steps would endanger himself or others |
| Sec. 2 - new §981(j)(6)(C) | allows people who acquire their interest in the property after the illegal act to assert the innocent owner defense if they are bona fide purchaser for value or if they inherited the property if they can show that at the time they received their interest they were reasonably without cause to believe the property was subject to forfeiture | Sec. 10 - new §983(b)(2)(B)(ii) | limits innocent owner defense for those who acquire interest after the illegal act to purchasers for value who can show "in light of the circumstances, the purchaser did all that reasonably could be expected to ensure that he or she was not acquiring property that was subject to forfeiture." |
| Sec. 2 - new
§981(j)(6)(D) |
protects innocent spouses and minor children from forfeiture of their primary residence if they acquired their interest in the property by divorce, operation of law, or inheritance - if they can show that at the time they received their interest they were reasonably without cause to believe the property was forfeitable | Sec. 10 - new
§983(b)(2)(C) |
adds further requirements - claimant must show loss of the property would deprive them of only means of maintaining adequate shelter in the community and that property is not traceable to proceeds; allows the court to limit the value of property claimant can keep to "the value necessary to maintain adequate shelter in the community." |
| Sec. 2 - new §981(j)(8)(2) | defines "owner" to include holder of lease, "lien, mortgage, recorded security device, or valid assignment of an ownership interest" but not an unsecured creditor, bailee (unless the bailee has a colorable interest in the property) or a straw owner. | Sec. 10 - new
§983(c)(1) |
similar, but excludes beneficiaries of constructive trusts from persons who can assert innocent owner defense; and limits innocent owner defense in forfeiture based on proceeds theory, to bona fide purchasers for value who acquire their interest after the illegal act without knowledge of illegality |
| Sec. 2 - new §981(k) | allows the property to be released to the claimant pending trial in cases of substantial hardship | Sec.11 - new §985 | |
| Section 3 - amends 28 U.S.C. §2680(c) | waives sovereign immunity for suit under Federal Tort Claims Act for damages to property while seized, if claimant prevails in forfeiture action (currently a claimant can't sue the US for damages to their property while seized - even if it is completely destroyed!) | Sec.9 - amends
28 U.S.C. 2680(c) |
waives sovereign immunity under Federal Tort Claims Act, allowing recovery of damages for negligent handling of property while detained if claimant wins forfeiture case, isn't convicted of a crime, and can show law enforcement function was carried out in an unreasonable manner |
| Section 4: amends 28 U.S.C. §2465 | requires government to pay successful claimant pre-judgment interest on seized currency, negotiable instruments or proceeds of interlocutory sale | Sec.13 - amends
28 U.S.C. §2465 |
no pre-judgment interest, but allows disgorgement of interest US earns on seized money only if the agency invested it in an interest bearing account |
See also FEAR's Chart: The Provisions
of S. 1701 Compared, Section-By-Section, with HR 1658.