FAIR Act Would Eliminate Department of Justice Program that Enables State and Local Police to Keep Proceeds of Property Seized from Citizens
Momentum Builds in Congress for Civil Asset Forfeiture Reform Days after Attorney General Holder Issues Policy Limiting Police Participation in Controversial Department of Justice Program
Bipartisan legislation was introduced in both houses of Congress today that would roll back changes made in the 1980s by Congress to federal civil asset forfeiture laws largely intended to incentivize law enforcement to pursue civil asset forfeitures as part of the rapid escalation of the war on drugs. In the Senate, Sen. Rand Paul (R-KY), Sen. Angus King (I-ME) and Sen. Mike Lee (R-UT) introduced the Fifth Amendment Integrity Restoration (FAIR) Act. In the House, Rep. Tim Walberg (R-MI), Rep. Scott Garrett (R-NJ), Rep. Tony Cárdenas (D-CA), Rep. Keith Ellison (D-MN) and Rep. Tom McClintock (R-CA) introduced an identical version of Sen. Paul’s FAIR Act.
“It’s encouraging to see strong bipartisan support in Congress for rolling back policies that have perpetuated the failed war on drugs and eroded the public’s trust in law enforcement,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “Congress has an opportunity to end the perverse incentives that federal laws give police to take innocent people’s property and run,” said Piper.
Civil asset forfeiture begins when a federal, state or local law enforcement agency seizes property during a traffic stop or other encounter and takes legal action against the property seized from its owner by alleging that the seized property is connected in some way to illegal drugs or other criminal activity. Property owners do not need to be charged or convicted of a crime in order for law enforcement to seize property.
The FAIR Act reforms decades-old federal laws intended to incentivize federal, state and local law enforcement to seize cash, homes, vehicles and other property from citizens. The bill eliminates the Department of Justice’s Equitable Sharing Program. For years, advocates have criticized the Department of Justice practice of accepting and processing seized assets from state and local law enforcement agencies through its Equitable Sharing Program, which retains 20 percent of the proceeds from the seizure received from a state or local law enforcement agency and returns up to 80 percent of the proceeds to the state or local law enforcement agency that initiated the seizure. A 2010 Institute for Justice report, Policing for Profit, documented how law enforcement agencies participate in the Equitable Sharing Program in order to bypass state laws that prohibit police departments from keeping the proceeds from civil asset forfeiture or impose a stricter legal standard for seizing property. The Institute for Justice report also found that many law enforcement agencies have come to depend on forfeiture proceeds.
A recent Washington Post investigation has also documented widespread abuse of this practice, including the extent to which the Equitable Sharing Program funnels proceeds to state and local law enforcement agencies, as well as federally-funded anti-drug task forces. Since 2001, the Washington Post found that nearly 62,000 cash seizures totaling more than $2.5 billion have been made without search warrants or indictments through the Equitable Sharing Program, which returned more than $1.7 billion of those seizure proceeds to state and local law enforcement agencies. The Washington Post also found evidence that hundreds of state and local departments and drug task forces rely on seized cash to support their budgets and that race may be a factor in civil asset forfeiture cases.
“For decades police have used civil asset forfeiture to rob innocent people, taking money right out of their wallets -- or even taking their home and their car -- without even charging them with a crime,” said Piper. “Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back.”
The FAIR Act also addresses concerns that federal law enforcement agencies may be adversely incentivized by seizure proceeds. The bill would require that seizure proceeds are deposited in the federal government’s general fund rather than federal law enforcement accounts that currently receive seizure proceeds. It also increases the federal government's burden of proof in civil forfeiture proceedings.
The introduction of the FAIR Act comes just days after Attorney General Eric Holder issued an order establishing a new Department of Justice policy prohibiting federal agencies from accepting certain civil asset forfeiture assets seized by state and local law enforcement agencies. Holder’s action followed receipt of a letter from key congressional leaders calling on the Attorney General to end the Equitable Sharing program. Sen. Chuck Grassley (R-IA), who chairs the Senate Judiciary Committee, and has oversight over the Department of Justice’s civil asset forfeiture program, has named civil asset forfeiture as one of his top legislative priorities for this year. In 2000, a coalition of concerned civil rights and conservative groups was able to push modest reforms to federal forfeiture laws through Congress, but not the level of reforms sought by advocates at the time.