Earlier this month, Congressman Tim Walberg (R-MI) reintroduced the Fifth Amendment Restoration Act (FAIR) Act. This measure is aimed at curbing federal forfeiture — which currently allows the government to seize billions of dollars in currency and property every year without a criminal conviction — indeed, without a criminal trial.
Civil forfeiture, in its current form, is without due process and basic fairness. None of the victims of forfeiture are found to be guilty of a criminal offense in court; most of them never see the inside of a courtroom. It is the federal government, not state governments, that carries out the vast majority of these forfeitures, and federal forfeiture is the practice that the FAIR Act is designed to reform.
The FAIR Act contains several policies that CEI has called for in the past. Specifically, the bill would:
The FAIR Act would require that federal revenues that are a result of forfeiture would no longer be deposited into Department of Justice accounts. Rather, such funds would be deposited into the Treasury’s general fund. This redirection of revenue would eliminate any motivation for federal law enforcement offices to step up forfeiture efforts to pursue larger internal budgets.
The FAIR Act eliminates existing statutory authority for equitable sharing. This means that some states which have tried protected their citizens from seizure and forfeiture at the state level would no longer be outgunned by federal pre-emption of state protective statutes.
Notably, the newest version of the FAIR Act improves on its previous iterations from previous Congresses: it extends its protections from judicial forfeiture to administrative forfeiture. This means that potential victims of forfeiture — when offered a choice between the relatively expensive and grueling process of pursuing their rights in court and the comparatively simple and informal process of pursuing their rights in a non-judicial, administrative forum — will have additional protections if the administrative option is chosen.
The FAIR Act also contains other praiseworthy policies: it provides for counsel to indigent property owners who face the prospect of forfeiture; it raises the standard of proof at trial from preponderance of the evidence (greater than 50% chance of being true) to clear and convincing evidence (something like a 75% chance of being true); and it requires a prompt probable cause hearing for those who face forfeiture.
Those who need the protections of the law when government agents threaten to forfeit their property are not always the most popular, influential, or politically powerful members of their community. Congressman Walberg’s leadership in this space to help protect the property rights of all Americans is noticed and appreciated.
