Right on Crime
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Derek M. Cohen | July 28, 2014
The movement for civil asset forfeiture reform has been gaining momentum as of late. What started as a spotlight on the national practice from a libertarian law firm has recently spawned interest in local to national media.
Now, Kentucky Senator Rand Paul has filed a bill seeking to substantially rein in the practice at the federal level.
Entitled the “Fifth Amendment Integrity Restoration (FAIR) Act,” (S. 2644) this item of legislation proposes substantial reforms to the process through which the government can take property absent a criminal conviction.
The bill raises the burden of proof to execute the forfeiture of the property from “preponderance of the evidence” (in layman’s terms: just slightly more likely than not) to “clear and convincing evidence.” In order to take full ownership of the property, federal prosecutors must now demonstrate that the item(s) in question has a “substantial connection” to the criminal offense to a higher standard approaching (though still short of) that for finding criminal guilt.
Perhaps most notably, the bill essentially stops equitable sharing, the common “end-around” used by state and local agencies to circumvent state forfeiture law. As earlier research on civil asset forfeiture has shown, agencies in states with tighter civil forfeiture laws are more likely to engage in equitable sharing.
Further, the FAIR Act breathes new life into the “innocent owner” defense that lay eviscerated following Bennis v. Michigan. Owners of property used by others for criminal purposes now must be shown to know their property was being used in illegal activities.
However, the “willful blindness” caveat contained in the bill could serve to hamper the effectiveness of this defense. After all, how does one demonstrate due diligence in hedging against a future crime?
It also fails to extend already-existing procedural protections (namely, right to counsel) that those accused of criminal activity are due. The cost of one’s own legal defense (oftentimes tens of thousands of dollars) is not transferable, and forces the own to determine if the legal victory is worth the cost to earn it irrespective of innocence.
While the fate of the current bill in still undetermined, it is heartening to see Congress proposing serious measures to preserve the sanctity of property rights and uphold the rule of law.