FAIR’s Fair

by Andrew Stuttaford

Rand Paul is making a more than welcome effort to rein in asset-forfeiture abuse. There’s an explanation over on his website:

Sen. Rand Paul yesterday introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which would protect the rights of citizens and restore the Fifth Amendment’s role in seizing property without due process of law. Under current law, law enforcement agencies may take property suspected of involvement in crime without ever charging, let alone convicting, the property owner. In addition, state agencies routinely use federal asset forfeiture laws; ignoring state regulations to confiscate and receive financial proceeds from forfeited property.

 The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property. State law enforcement agencies will have to abide by state law when forfeiting seized property. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.

 ”The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime. The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime,” Sen. Paul said.

Over at the Washington Post, Radley Balko applauds, and explains the requirement that state agencies “will have to abide by state law when forfeiting seized property”:

Currently, a number of state legislatures across the country have passed reform bills to rein in forfeiture abuses. The problem is that the federal government has a program known as “adoption” or “equitable sharing.” Under the program, a local police agency need only call up the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives or similar federal agency. That agency then “federalizes” the investigation, making it subject to federal law. The federal agency then initiates forfeiture proceedings under the laxer federal guidelines for forfeiture. The feds take a cut and then return the rest — as much as 80 percent — back to the local agency. This trick thwarts the intent of state legislature that have attempted to make civil forfeiture more fair when it comes to burden of proof, protections for innocent property owners and eliminating the perverse incentive of allowing forfeiture proceeds to go to the same police agency that made the seizure.

I’ve long thought that the idea of asset forfeiture in the absence of a conviction is very difficult (translation: impossible) to reconcile with any justice system worthy of the name. Senator Paul’s proposed bill is a step in the right direction.

It will be interesting to see if Paul can find the necessary co-sponsors. And no less interesting to see who exactly signs up, and who does not. 

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