Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform

From: National Review

Since the death of George Floyd during his arrest by Minneapolis police officers in late May, Americans of all colors, creeds, and political predilections have recognized the need for improvements to the U.S. criminal-justice system. Unfortunately, any hopes of a comprehensive reform bill being passed this congressional term were dashed when Senate Democrats blocked Tim Scott’s (R., S.C.) JUSTICE Act in June. However, Representative Tim Walberg’s (R., Mich.) Fifth Amendment Integrity Restoration (FAIR) Act is an opportunity for Congress to nevertheless come together for bipartisan and meaningful change.

Law enforcement can currently seize and claim property through criminal forfeiture, administrative forfeiture, or civil forfeiture. Criminal forfeiture brings charges against the property of a defendant in tandem with charges against that defendant. A jury must rule the property forfeitable before the government can claim it as its own. Criminal forfeiture is left untouched by the FAIR Act. Administrative forfeiture, according to the Department of Justice, “permits the federal seizing agency to forfeit the property without judicial involvement” and applies to “merchandise the importation of which is prohibited; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value.” Walberg’s legislation tinkers with administrative forfeiture, but only marginally.

Civil-forfeiture reform is the principal focus of the FAIR Act, and for good reason: The process is broken. Under this form of forfeiture, the government brings charges against the property itself without leveling any against the property owner. On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough. It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course.

Once proceedings have been initiated, the government needs to prove, by a preponderance of the evidence (51 percent sure), only that the property is subject to forfeiture. The burden of proof then belongs — in most states — to the owners of the property, who must show that they were neither involved in any criminal activity nor aware that their property was being used for criminal purposes, or that, if it were, then they took steps to end that criminal activity. Worst of all, property owners are not even necessarily entitled to legal representation. Whether they are granted this basic right is left to the discretion of the presiding judge.

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