Revolution

Asset Forfeiture Justice Act

This is a section-by-section analysis of the Asset Forfeiture Justice Act introduced by Congressman John Conyers. (I've lost the author's name and the date.) Although the bill went nowhere, this analysis shows how badly reform is needed.


This bill provides comprehensive due process and oversight protections for individuals subject to civil asset forfeiture and redistributes the assets seized.

SEC. 2. REQUIRE CONVICTION

This section requires that forfeiture of property not occur until the owner has been convicted of a crime upon which the forfeiture is based. The owner has no property rights in any contraband, including controlled substances and drug paraphernalia.

SEC. 3. NOTICE

This section requires that notice by sent to the owner or other interested parties (i.e. lienholder) no later than 60 days after the property is seized.

SEC. 4. BURDEN OF PROOF

This section shifts the burden of proof to the government and raises the standard of proof required for civil forfeiture proceedings to clear and convincing evidence.

SEC. 5. PRELIMINARY HEARING

This section requires a preliminary adversarial hearing prior to seizure.

Exemptions include: cases in which seizure is incident to arrest, or search under a search warrant, or an inspection under an administrative inspection warrant, and those cases involving exigent circumstances, i.e., highway and airport stops. A preliminary hearing will be granted immediately after seizure.

SEC. 6 ELIMINATION OF BOND: ADEQUATE REPRESENTATION

This section eliminates the bond requirement (10% of the value of the property or $2500, whichever is less), and allows the property owner to file a claim within 60 days from the date of notice that the property was seized. It also establishes the right to adequate counsel.

SEC. 7. RIGHT TO JURY TRIAL

This section establishes the right to a jury trial in civil forfeiture cases.

SEC. 8. ATTORNEYS' FEES

Under this section, any property which has been paid or pledged to pay for attorney fees cannot be subject to forfeiture proceedings.

SEC. 9. IN PERSONAM

This section prohibits civil forfeiture proceedings from being held in rem (actions instituted against the thing) and requires them to be held in personam (actions directed to a specific person) thereby extending due process protections to property owners.

SEC. 10. FILING DEADLINES

This section lengthens the filing deadline for property claimants from 10 to 60 days.

SEC. 11 PROPORTIONALITY

This section establishes that the value of the property seized must be less than or of equal value to the value of the property involved in the offense.

SEC. 12. ELIMINATION OF THE RELATION-BACK DOCTRINE

At present, the "relation-back doctrine" gives title to the government of property at the moment that it is involved in criminal activity. This section vests the right, title, and interest in property only after a verdict in favor of the government.

SEC. 13. PROPERTY SUBJECT TO SEIZURE

This section limits the types of property subject to seizure to the drugs, raw materials, products, equipment, property used or intended for use as a container, aircraft, vehicles, or vessels, weapons, and equipment used in a drug enterprise.

SEC. 14. FORFEITURE PROCEEDS TO STATE TREASURIES

Under this section, all forfeiture proceeds transferred to state and local law enforcement will be transferred directly to State treasuries, for disposition according to State law.

SEC. 15. EXPANDED USE OF FORFEITURE PROCEEDS

Under this section, federal forfeiture proceeds will be made available for community-based crime control programs, and drug treatment, prevention and education programs.

This section also allocates fifty percent of forfeiture proceeds for drug treatment, prevention and education programs, and community-based crime control program[sic]. Not more than 10 percent of the total disbursed may be used for administrative costs.

SEC. 16. PAYMENT OF INFORMANTS

Under this section the total paid to any individual informant is limited to $250,000 per person per year. [It is currently $250,000 or 25% of the value per seizure. -CY] This section also requires the Attorney General to publish data annually regarding the awards paid.

SEC. 17. ADOPTIVE SEIZURE

This section prohibits the States from transferring property to the Federal government for the purpose of circumventing State or local laws limiting use of disposal of the proceeds.

SEC. 18 REPORTING REQUIREMENTS

This section requires data to be maintained regarding all persons from whom property is seized, including race, national origin, gender and age.

This section also requires the States to account for the disposition of all proceeds.

SEC. 19. MAINTENANCE OF SEIZED PROPERTY

This section requires the return of all property seized if forfeiture proceedings have not been initiated within one year from the data of seizure.

This section also requires payment of interest on any seized coins, currency or negotiable instruments at a rate of six percent, or the prevailing market rate, whichever is higher. Compensation will be paid for any injury incurred by the property seized.

SEC. 20. ADMINISTRATIVE AND CONTRACTING EXPENSES

This section limits administrative and contracting expenses for each fiscal year to ten percent of the total amount paid from the Asset Forfeiture Fund.

SEC. 21. REPORT OF CONGRESS

This section requires the Attorney General to transmit to Congress a detailed report containing a description of the administrative and contracting expenses paid from the Fund at the end of each fiscal year.

SEC. 22. NOMINAL CONSIDERATION SALES OF LOW VALUE REAL PROPERTY

This section requires the Attorney General to make nominal consideration sales of low value real property available to tax- exempt organizations that provide direct services furthering community-based crime control, housing, or education efforts in those neighborhoods.

SEC. 23. ACTIONS UNDER THE TORT CLAIMS ACT

This section allows a claim to be filed under the Tort Claims Act for the destruction, injury, or loss of property due to the misfeasance, malfeasance, or nonfeasance incurred while such property is in the custody of a law enforcement officer.