The FAIR Act: New bill aims to reign in policing for profit

Policing for profit.
Policing for profit.
Policing for profit.

One of the many abusive procedures used in modern policing is known as civil asset forfeiture. When it is applied, police officers and investigators confiscate property — cash, vehicles, equipment, bank accounts, real estate — based on the mere suspicion that it may be involved with criminal activity. The owner is robbed, for all intents and purposes, without any establishment of guilt.

The legal basis for “forfeiting” property is so loose that often a person might lose his possessions and be let go without any criminal charges. The owner is then tasked with fighting in court to get the property returned, a process that can be lengthy and cost-prohibitive. Additionally, police and district attorneys typically get to keep what they seize, and use it to redouble their forfeiture efforts.

The official DEA Asset Forfeiture Program patch.
The official DEA Asset Forfeiture Program patch.

Employment of the dubious tactic has been on the rise, primarily in the name of drug prohibition, and facilitated through the use of domestic spying. Since 2001, the total amount of property seized annually by the DEA has soared by 200 percent!  NSA surveillance technology has been a boon to those in the business of plundering without due process.

Besides endlessly harassing people over victimless crimes, asset grabbers also roll up a number of people who have not even broken the law.  One elderly Massachusetts couple had their family-based motel seized by the U.S. Department of Justice.  Another recent example occurred when a man who had just won big at a Las Vegas casino had his cash seized during a traffic stop.  None of these parties were charged with a crime, and eventually fought to get their property back in court.  However, the vast majority of victims of civil asset forfeiture will never have their story told.

This week, U.S. Senator Rand Paul (R-KY) introduced S. 2644, the Fifth Amendment Integrity Restoration Act, otherwise known as the FAIR Act. Senator Paul’s office described the bill in a press release:

U.S. Senator Rand Paul
U.S. Senator Rand Paul

[S. 2644] 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.

Although civil asset forfeiture is a problem in every state, some of the abuse arises from the incentives offered for getting the federal government involved. State laws that might otherwise prevent abusive confiscations can be circumvented if the local cops invite the DEA, ATF, FBI, or similar federal agency to take over an investigation. In these “equitable sharing” situations, the feds take a cut of the loot and return the rest to the local agency — as much as 80 percent. Needless to say, the system is rife with corruption and encourages predatory policing.

The Hartford (Connecticut) Police Department proudly shows off seized and repurposed property.
The Hartford (Connecticut) Police Department proudly shows off seized and repurposed property.

The FAIR Act puts forth three core reforms to federal civil asset forfeiture practice: (1) it would eliminate most of the direct incentives driving asset forfeiture abuse by directing forfeiture proceeds to the U.S. Treasury department’s general fund, in lieu of the DOJ’s asset forfeiture fund; (2) it would prevent state and local police from evading state laws governing the availability of civil forfeiture and the distribution of forfeiture proceeds (“equitable sharing” or “adoption”); and (3) the Act would increase the Government’s burden of proof for a forfeiture, from a preponderance of the evidence standard to that of a clear and convincing evidence standard — the standard originally proposed for the Civil Asset Forfeiture Reform Act of 2000 by the late Henry Hyde.

“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,” Senator Paul said. “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.”

To accompany Paul’s efforts in the Senate, U.S. Representative Tim Wahlberg (R, MI-7) introduced H.R. 5212; slightly weaker than the FAIR Act but still attacking the same systematic problem.

Deputy Lee Dove of the Humboldt County Nevada Sheriff's Department poses with cash confiscated during a traffic stop.  The driver claimed he won the money in a Las Vegas casino; he was never charged with a crime. (Source: Facebook)
Deputy Lee Dove of the Humboldt County Nevada Sheriff’s Department poses with cash confiscated during a traffic stop. The driver claimed he won the money in a Las Vegas casino; he was never charged with a crime. (Source: Facebook)

“In a country founded on principles of due process and property rights, we should not be promoting a system where an individual’s property may be seized without a finding of guilt,” explained Rep. Walberg. “Reform to our civil asset forfeiture laws is necessary to ensure the federal government can no longer profit from the unjust seizure of property.”

Americans for Forfeiture Reform (AFR), an advocacy group that exposing forfeiture abuse and lobbies for policy change, has publicly endorsed the FAIR Act and is promoting its passage.

“The FAIR Act is a substantial reform of federal civil asset forfeiture,” AFR founder Eapen Thampy told Police State USA. “It includes three key reforms: legislative re-appropriation of forfeiture revenues, a mandate that state and local law enforcement receiving forfeiture funds obey state laws regarding the disposition of those funds, and a mandate that the government must show clear and convincing evidence of wrongdoing before property is forfeited in court.”

“While these reforms will not totally end abuses of the system,” Thampy explained, “they will substantially level the legal playing field for victims of forfeiture and re-empower voters by reinstituting the legislative power of the purse over law enforcement. Additionally, drug policy and criminal justice reform advocates will find that asset forfeiture’s role as a key economic engine of drug prohibition and police militarization will be substantially constrained if FAIR is passed.”

To support the FAIR Act, take a moment to let members of Congress know this reform is important and a priority to constituents. Express support of the FAIR Act online and also utilize phone calls, emails, and letters.


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