Hearing of the Senate Judiciary Committee - Need to Reform Asset Forfeiture

Hearing

Today the Senate Judiciary Committee will hold a hearing on the need for asset forfeiture
reform. The issue is as old as our Constitution.

As Madison remarked in Federalist 51, "In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself."

Law enforcement is a principal means by which the government is enabled to control the
governed. Civil asset forfeiture is an important and valuable tool for law enforcement to seize
property associated with criminal activity. Civil asset forfeiture allows the government to seize
and forfeit foreign owned boats and planes that were used to smuggle drugs. It can be used to
seize assets controlled by entities tied to foreign terrorist organizations. And it can be used to
forfeit the property of a defendant who dies before he is convicted.

The property that the government obtains through civil asset forfeiture can be used to
compensate victims and otherwise deprive criminal organizations of funding.

We all recognize the value of civil asset forfeiture. Even in the midst of the current reform
effort, no bill before Congress would abolish civil asset forfeiture and I wouldn't support one.
But as asset forfeiture is currently practiced, nothing is obliging the government to control itself.
Just the opposite.

Civil asset forfeiture leads government to exceed its just powers over the governed. It
encourages law enforcement to take short cuts. Rather than prosecute or even arrest, civil asset
forfeiture enables law enforcement to seize property without any proof of wrongdoing. And the
process creates perverse incentives.

Under adoption and equitable sharing, state and local law enforcement can seize property and
ask the federal government to "adopt" the seizure as if it had been carried out by federal officials.
If this occurs, the state or locality receives 80% of the value of the very property that they
arranged to have forfeited. This incentivizes police to seize particular property to obtain a direct
financial reward.

When this occurs without pursuing a criminal conviction, or even an arrest, the chances rise that
the rights of innocent people will be violated.

A number of media reports have set forth a wide range of instances in which individual rights
have been infringed, especially in traffic stops and in structuring cases, such as the Carole
Hinders case from Iowa. Some of the extensive reporting was done by the Des Moines Register.

And the process of contesting forfeiture as it currently operates is a trap for the unwary. In 2000,
Congress passed the Civil Asset Forfeiture Reform Act. CAFRA made some improvements for
innocent owners and in establishing timeframes. But the most important procedural reforms
were gutted at the behest of law enforcement. So the abuses that existed in 2000 have only
grown. Iowans have raised their concerns about asset forfeiture with me. It is past time to take
action to address them.

The Justice Department has issued policy guidance that it believes will end equitable sharing and
eliminate forfeiture in structuring cases where there is no evidence of any other underlying
crime. DOJ is mistaken. Their policies are full of loopholes.

Its policy would allow equitable sharing for joint task forces. It contains a so-called public
policy exception for guns, ammunition, and child pornography.

I disagree.

When law enforcement encounters a crime, it should make an arrest and begin a prosecution. It
is unacceptable for the federal government to seize and forfeit a gun, as the Justice Department
would allow, not only without a conviction; not only without a prosecution, but not even with an
arrest. And the Justice Department's structuring policy -- which supposedly prohibits civil asset
forfeiture when there is evidence only of structuring -- allows agents to presume there's another
underlying crime when they can't find evidence that there isn't one.

I have been disappointed with law enforcement's response to the call for reform. The Justice
Department was invited to testify today, but they declined, claiming that they could not be ready
in time. Two months ago they were ready and able to testify on this same subject before the
House, but they demonstrated then that they were out of touch and unprepared for legislative
reform.

I am troubled that the FOP's written testimony similarly dismisses the need for real reform and
demonstrates the absurdity of a system of justice in which some in law enforcement appear to
value funding their own operations over protecting civil rights. No one in law enforcement has
offered constructive legislative alternatives. I hope that will change. Legislation is necessary.

It's necessary to end equitable sharing and its perverse incentives; to provide due process to
individuals whose assets have been taken; to strengthen the burden of proof; to codify the IRS's
new structuring policy; and to overturn a Supreme Court decision on criminal asset forfeiture.

A group of bipartisan, bicameral legislators is at work to develop a bill to reform asset forfeiture.
But we should do so while recognizing the value of civil asset forfeiture. And we should
continue to allow proceeds to flow to law enforcement, so long as there is no direct connection
between any particular asset that is seized and the agency that seized the asset.

It is that dynamic that inherently makes the process flawed and that makes the government
unable to control itself, to the detriment of the liberties of its citizens.

Beyond legislation, there are problems with the administration of asset forfeiture. Time and
again, I have received reports of agencies at all levels of government spending asset forfeiture
money at whim and with very little oversight.

In recent weeks, I heard from whistleblowers who allege that the Asset Forfeiture Division at the
U.S. Marshals Service is spending asset forfeiture money on lavish office furnishings and
facilities, like a $22,000 conference table and a $1.8 million training facility that lies unused
nearly eleven months of the year.

Whistleblowers also allege that Asset Forfeiture Division resources have been used selectively to
reward friends of senior management with agency jobs and lucrative contracting positions. This
kind of cavalier spending is out of control.

At this point, I would ask unanimous consent to introduce into the record three letters. The first
is a letter from the ACLU in support of bipartisan, bicameral asset forfeiture reform. The second
is from the Leadership Conference on Civil and Human Rights, supporting reform of civil asset
forfeiture laws. The third is a letter from 24 organizations outlining a statement of principles for
achieving effective federal forfeiture reform.

Those organizations include the American Conservative Union Foundation, Americans for Tax
Reform, the NAACP, and the National LGBTQ Task Force Action Fund. That letter asks us to
take such action as eliminate equitable sharing and advance due process in forfeiture
proceedings.

The Committee is fortunate to have knowledgeable witnesses today to share their experiences
concerning asset forfeiture. I look forward to their testimony.

Source