FAIR Act is Poised to Reform Federal Asset Forfeiutre Law

The Fifth Amendment Integrity Restoration Act, or FAIR Act of 2015, aims to reform federal civil asset forfeiture laws which allow law enforcement to seize property connected to criminal activity. Representative Tim Walberg (R-MI) and Senator Rand Paul (R-KY) introduced the bills, which would reform civil forfeiture primarily by requiring law enforcement to meet a higher burden of proof before confiscating property and by abolishing a program that allows law enforcement agencies to keep large amounts of money obtained through civil forfeiture.

The FAIR Act would impose a higher burden of proof on the government when seizing property under forfeiture laws. Currently, law enforcement officers must meet a “preponderance of the evidence standard,” which means that it is more likely than not that the property in question is connected to a crime. The FAIR Act would require that there be “clear and convincing evidence”—a higher burden of proof. Law enforcement officers would have to show by clear and convincing evidence that the owner of the seized property either used it in criminal activity, knowingly consented to its use in criminal activity, or was willfully blind to another’s use of the property in criminal activity. The Act will also keep the burden of proof on the government, as opposed to current federal asset forfeiture law which in some instances shifts the burden to the property owner to prove that the property is not connected to criminal activity.

As we discussed in a recent post, the FAIR Act will also end the Equitable Sharing Program. It would require that money the government obtains through forfeiture go to the General Fund of the Treasury, instead of to the Department of Justice and to the law enforcement agencies who made the seizures. The National Association of Criminal Defense Lawyers (NACDL) issued a letter stating that this would remove the “staggering” financial incentive for law enforcement officers to seek forfeitures.

The Senate bill, S. 255, was introduced on January 26th and referred to the Judiciary Committee. The House bill, H.R. 540, was introduced on January 27th. Hopefully, it will not be much longer before our country has a reasonable asset forfeiture process aimed at quelling real criminal activity and preventing the aggressive and unconstitutional taking of property from law-abiding individuals.