When I contacted Senator Feinstein's office this week and expressed my dismay that my senator had co-sponsored S. 1701, the staff insisted that the Department of Justice did not write this bill. After reading S. 1701 I was convinced that this was virtually identical to HR 1965, with the sections scrambled in a different order -- so I created the following table comparing the two bills. This comparison clearly shows that if DOJ didn't write S. 1701 themselves, whoever wrote it plagiarized HR 1965, the 1997 forfeiture bill drafted by the Department of Justice! There's no way someone would come up with so much identical language by chance. Compare the provisions below and decide for yourself.
Maybe Senator Feinstein and the other cosponsors didn't know that the language they were borrowing was from 1997's HR 1965, or that HR 1965 was an expansion bill written by the DOJ. Although HR 1965 had Rep. Henry Hyde's name on it, it was a transmogrification of the bill Hyde introduced earlier that term - HR 1835. After the hearings on HR 1835 on July 22, 1997, the House Judiciary Committee let the Justice Department lobbyists rewrite the bill and rename it HR 1965, making the "reform" bill worse than current law. HR 1965 instantly created a backlash of criticism. A host of nonprofit organizations from across the political spectrum joined together for the first time and managed to defeat it. The ACLU, the National Rifle Association, Gun Owners of America and the Conservative Consensus -- among many others -- all encouraged their members to oppose HR-1965. Only one congressman ever signed on as a cosponsor for HR 1965.
S. 1701 is by no means a compromise between the recently passed Hyde bill (HR 1658)* and current law -- S. 1701 is much worse than current law. Whereas HR 1965 at least tried to masquerade as a forfeiture "reform" bill, by creating token procedures which mimicked the Hyde bill, then rendered them useless by creating enough exceptions and hurdles to swallow any possibility anyone would ever qualify for the "increased due process" of those provisions -- S. 1701 doesn't even pretend to incorporate the reforms of the Hyde bill, not even the bogus "reform" provisions of HR 1965!
Well folks, it's back!!! And it's even nastier than before. It's time to gear up our opposition and defeat S-1701! Please write your Senators and alert your favorite nonprofit groups to this very urgent issue and get them involved. Also please cross-post bulletins to any e-mail list you think might be interested.
-- Brenda
* If you're having trouble keeping the bill numbers straight, go to our New Federal Legislation page for a history of our federal forfeiture reform bill.
If you're having trouble reading the table because it doesn't fit into the frames, right click within the frame and click "open frame in new window" to enlarge the frame to fill the screen. To exit the new window, click on the X box in the upper right corner of your screen.
| 2 | burden of proof | |
| 3 - new §981(l)(1)(A) | administrative forfeiture within 60 days of seizure | Sec. 2- new §983(a)(1)(A) - identical |
| 3 - new §981(l)(1)(B) | - remedy - temporary return to property owner | Sec. 2- new §983(a)(1)(B) - identical |
| 3 - new §981(l)(2) | - extension of time from Atty. General or delegate | Sec. 2- new §983(a)(2) -(new bill is worse!) |
| 3 - new §981(l)(3) | motion to set aside declaration of forfeiture | Sec. 2- new §983(a)(3) - identical |
| 3 - new §981(l)(3)(B) | - if set aside, government gets to start over | Sec. 2 - new §983(a)(4) - identical |
| 3 - new §981(l)(3)(C) | - if property has been disposed of, forfeiture starts
over against a sum of money equal to value of property |
Sec. 2 - new §983(a)(5) - identical |
| 3 - new §981(l)(3(D) | - above is exclusive remedy for obtaining review of bogus
forfeiture without notice |
Sec. 2 -new §983(a)(7) - identical |
| 4a - new 19USC§1608 | administrative claim must be filed within 30 days of publication
of notice; new provision - claim must be sworn by claimant |
Sec. 2 -new §983(b) - (new bill is worse!) |
| 4a- new §1608(b) | cost bond - same as current law (HR1965 would have eliminated cost
bond for non-customs forfeitures. This is the same as current law!) |
Sec. 13 eliminated cost bonds in non-customs
forfeitures
(new bill is worse!) |
| 4a- new §1608(c) | same as current law (why bother?) | not in HR 1965 |
| 4a- new §981(d) | exemption from cost bond - by pledging other property worth more
than bond, plus other extra burdens on claimants |
not in HR 1965, which would have eliminated cost bond (contrast Sec. 13) |
| 5 - new §981(m) | government must file forfeiture complaint within 90 days after receipt
of claim & cost bond (worse than current law, which has 60 day limit for vehicles seized in drug related cases) |
Sec. 2 - new §983(c) - same provisions,
slightly different wording |
| 5 - new §981(m)(3)(B) | claimant can file a motion to dismiss instead of an answer - This is the same as current law! See F.R.Civ.P. 12(b) | not in HR 1965 |
| 5 - new §981(m)(4)(A) | claimant can file a motion to dismiss for failure to comply with Supplemental
Rule E(2) - This is the same as current law! |
not in HR 1965 |
| 5 - new §981(m)(4)(B) | claimant may not move to dismiss for insufficiency of evidence at time of filing the complaint (this takes away a remedy available under current law) | not in HR 1965 |
| 6 - new §981(n) | motion for return of property - exceptions take away most of the usefulness of this remedy - worse than current law! | not in HR 1965 |
| 7 - new §981(o) | award of attorney's fees to successful claimant, who is not charged with any criminal offense, but not lienholders; allows sanctions against claimants too. (current law allows attorney's fees without so many exceptions - see Equal Access to Justice Act) | not in HR 1965 |
| 8 - new §981(p) | "new" procedures for real property - are basically the same as current law, except for §981(p)(3), which attempts to overrule the remedies provided by the Supreme Court in U.S. v. James Daniel Good Real Property! | not in HR 1965 |
| 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 | Sec. 3 has fewer exceptions and hurdles
for the claimant. (new bill is worse!) |
| 10 - new §983 | uniform innocent owner defense which makes it harder to prove innocence
than
current standards under most federal civil forfeiture statutes |
Sec. 2 - new §983(f) - some provisions
are the
same, with slightly different wording, but new bill makes it harder to establish innocent owner defense |
| 11 - new §985 | release of property in hardship cases | Sec. 2 - new §985 - provisions are the same except new bill puts additional burdens on claimant to ensure the government is protected against decline in value of the property |
| 12 - new §981(g) | stay of civil forfeiture case while criminal case pending | not in HR 1965 |
| 13 - amends
28 U.S.C. §2465 |
payment of interest, disgorgement of interest earned on seized money if invested | Sec. 4 - new §2465 - provisions are same except new bill creates new loophole - government doesn't have to deposit $$$ in interest bearing account, and doesn't have to disgorge any other benefits obtained from seized property (new bill is worse!) |
| 14- amends
18 U.S.C. §981(b) |
seizure warrant requirement | Sec. 5 - amends §981(b) - provisions
are the same except new bill
makes a few minor changes in favor of the government |
| 14 - new §981(b)(4) | suppression of evidence (same as current case law!) | Sec. 2g - provisions are identical |
| 15 - amends §981(q) | civil restraining orders | Sec. 2j - provisions are identical |
| 16 - new §981(r) | excessive fines (same as current case law!) | Sec. 2k - provisions are similar, but new bill is worse |
| 17 - new §981(s) | civil investigative demands (allows prosecutors investigating
forfeiture case to issue subpoenas for evidence, instead of having to ask grand jury to issue subpoena) |
Not in HR 1965 |
| 18 - new §986(d) | access to records in foreign jurisdictions where property owners
are protected by bank secrecy laws - if claimant refuses to waive his secrecy rights, his claim is dismissed with prejudice! |
Sec. 6 - provisions are identical |
| 19 - amends
18 U.S.C. §3322(a) |
allows civil forfeiture prosecutors access to secret grand jury
transcripts in any civil forfeiture case |
Sec. 8 - provisions are identical |
| 20 - amends
26 U.S.C. §6103(i)(1) |
allows civil forfeiture prosecutors access to IRS records | Sec. 7 - provisions are identical |
| 21 - amends
19 U.S.C. §1621 |
statute of limitations for civil forfeiture | Sec. 26 - new bill is worse |
| 22 - amends
18 U.S.C. §2232 |
destruction or removal of property to prevent seizure | Sec. 27 - provisions are identical |
| 23 - amends
18 U.S.C. §984 |
fungible property in bank accounts - makes the commingling
provisions of §984 applicable to all forfeiture statutes |
Not in HR 1965 |
| 24 - adds new
21 U.S.C. §881(k) |
currency seized from "drug couriers" - allows court to find cash was proceeds based on packaging, amount, chemicals, drug dog alert, pager/phone numbers on claimant, etc. | Not in HR 1965 |
| 25 - adds new
18 U.S.C. §981(e) |
use of forfeited funds to pay restitution | Sec. 9 - new bill allows forfeiture revenue to be used to pay restitution, but eliminates 1965's provisions allowing forfeiture funds to be used to pay restitution to financial institutions |
| 26 - adds new
28 U.S.C. §2466 |
fugitive disentitlement - attempts to statutorily overrule the
Supreme Court decision of Degen v. United States |
Not in HR 1965 |
| 27 - adds new
28 U.S.C. §2467 |
mutual enforcement of foreign forfeiture judgments with other
countries under mutual forfeiture assistance treaties |
Sec. 10 - provisions are substantively the same, with minor reorganization and language |
| 28 - adds new
28 U.S.C. §2461(c) |
allows indictments to include a civil forfeiture count, even when
there is not correlative criminal forfeiture statute |
Sec. 30 - provisions are identical |
| 29 - amends
21 U.S.C. §881(d) |
makes the procedures of 18 U.S.C. §§981 - 986 (including
procedural changes from this bill) applicable in drug forfeiture cases |
Sec. 13(b) - new bill is worse because it restores cost bond requirement |
| 30 - adds new
18 U.S.C. §987 |
conforming amendment - just a technical correction apparently | Not in HR 1965 |
| 31- amends
8 U.S.C. §1324(b) |
expands INS forfeiture statute to include new classes of forfeitable property & new alien smuggling forfeitable offenses | Sec. 33 - new bill contains this technical correction and expands INS forfeiture authority beyond HR 1965 (new bill is worse) |