History of the Problem
Civil Asset Forfeiture
In 2000, Congress unanimously enacted the Civil Asset Forfeiture Reform Act (CAFRA),3 the only major reform of our nation’s forfeiture laws in over 200 years. CAFRA had strong bipartisan support, reflecting the public’s concern that individual property rights were in danger from overzealous enforcement of forfeiture laws.4 The Act delivered several meaningful and overdue reforms. For example, it placed the burden of proof on the government by using a “preponderance of the evidence” standard in all civil forfeiture cases covered by the Act. It also abolished the cost bond, the fee that claimants were required to pay before they could legally proceed to petition for return of their own property. Unfortunately, many of the law’s important reforms have been undermined by statutory loopholes or judicial decisions.
Several states enacted similar reforms to address concerns regarding civil asset forfeiture laws.5 Indeed, some states enacted even broader reforms, in some cases requiring criminal conviction prior to any asset forfeiture. However, federal law has frustrated some of these reforms. For instance, under the federal equitable sharing law, if state police want to circumvent state forfeiture laws — for example, because the state law allocates forfeited assets to the state’s education fund rather than the state police — they simply turn the forfeiture proceeding over to federal law enforcement authorities. Federal authorities keep 20% of the proceeds of the forfeiture and return roughly 80% to the state police. Federal legislation or regulation to halt this circumvention of state law and fiscal policy should garner strong bipartisan support, as it would serve to protect “states’ rights,” allowing states to enact their own reforms without federal interference.6
In addition to the issues described above, judicial opinions have thwarted efforts of those who would seek full relief from the wrongful seizure of assets. Specifically, remedies available to those persons whose assets were wrongly seized by asset forfeiture have been limited by judicial decisions, which have undermined the rights of prevailing parties to obtain attorney fees and damages from the government.7 Legislation addressing this issue could provide a useful tool to protect an individual’s property rights.
Criminal Asset Forfeiture
CAFRA did not contain any reforms of the criminal forfeiture laws, due in part to the need to streamline the already complex negotiation process over civil forfeiture reforms. As a result, changes to the Federal Rules of Criminal Procedure and judicial decisions have greatly expanded the government’s power to obtain criminal forfeitures. Many of these changes are at odds with the language and intent of the criminal forfeiture statutes enacted by Congress. In short, criminal forfeiture procedure has become less fair to defendants and third parties, while civil forfeiture has become fairer as a result of CAFRA. Not surprisingly, the government has decided to use criminal forfeiture instead of civil forfeiture whenever it is able to do so.
While Congress was drafting the civil forfeiture reform legislation, the Advisory Committee on Criminal Rules, promulgated Federal Rule of Criminal Procedure 32.2 on December 1, 2000.8 Rule 32.2 substantially curtailed the statutory right of a defendant to have the forfeiture issue decided by a jury, abolished the prior rule that the Federal Rules of Evidence apply at a forfeiture hearing, and abrogated the prior rule that the government must specifically allege what it seeks to forfeit in the indictment. It also fails to address an individual’s right to challenge protective orders sought by the government in ex parte proceedings and substantially restricts the rights of third parties, often innocent of any crime, in criminal forfeiture proceedings.
In addition, the increased use of so-called personal “money judgments” in lieu of orders forfeiting specific property has created a completely separate, judicially-created schema apart from the policies that Congress has sought to implement.9 These money judgments allow the government to seek money beyond those assets that would otherwise be subject to forfeiture, increasing the threat that an individual could be unfairly deprived of property.