The Administration strongly opposes enactment of H.R. 1658. The Administration has proposed civil asset forfeiture reform legislation that would ensure fairness and create additional due process protection. H.R. 1658, however, would have a serious negative effect on the Federal Government’s ability to combat drug trafficking, alien smuggling, terrorism, consumer fraud and many other criminal offenses.
Among other things, H.R.1658 would:
- Raise the standard of proof in forfeiture cases to clear and convincing evidence. The burden of proof should be on the Government, but by a preponderance of the evidence as it is in virtually all other civil cases. H.R. 1658 would afford drug dealers and alien smugglers greater protection for their property than doctors are afforded in health care fraud cases, defense contractors in false claim cases, or bankers in bank fraud cases.
- Create a windfall for incarcerated prisoners. H.R. 1658 would force the Government to return seized property to prisoners if notice of the forfeiture is inadvertently sent to the wrong jail. The proper remedy for such errors is to allow the Government to send proper notice to the prisoner and allow the prisoner to file a claim to the property.
- Allow drug dealers to pass drug fortunes on to their heirs through probate. The Administration supports enactment of an innocent owner defense, but it should not allow criminals to shield criminal proceeds from forfeiture if they die before the property is forfeited.
- Encourage the filing of tens of thousands of frivolous claims. H.R. 1658 would permit anyone asserting an interest in seized property to file a claim and apply for a free lawyer paid for by the taxpayer. The Department of Justice brings more than 40,000 civil forfeiture actions a year. Requiring the Federal Government to provide a free attorney to anyone who wants to contest a forfeiture action would overwhelm the judicial system with frivolous claims.
- Require the release of seized cash, vehicles, and airplanes to property owners who demonstrate a “hardship” while their trial is pending even if there is compelling evidence that it was used to commit a crime. Criminals generally, and drug traffickers and alien smugglers, in particular, are unlikely to show up for trial on the forfeiture of their property if it was released to them immediately after the seizure. More likely, the cash, vehicle, or airplane will be put back to use in criminal activity if it is not held by the Government pending trial. Criminals facing significant time in prison are unlikely to be dissuaded by penalties associated with dissipating assets returned to them during the pendency of proceedings.
The Administration understands that Reps. Hutchinson, Weiner, and Sweeney plan to offer a substitute amendment that is very similar to a bill considered in the 105th Congress (H.R. 1965). The Hutchinson/Weiner/Sweeney amendment would reform the civil forfeiture process without going beyond what is needed to ensure fairness and due process. The Administration would support that amendment.