Weekly Column: Civil Forfeiture Reform--Restoring Constitutional Protections

Requiring Americans to prove their property should not have been taken by the government, rather than the government proving guilt, undermines our system of justice.  Commonsense restraints must be instituted to protect against civil asset forfeiture abuses.  I am again backing legislation to address problems with civil asset forfeiture.

According to a March 2017 U.S. Department of Justice (DOJ) Inspector General report, the Department seized more than $28 billion over the past ten years via asset forfeiture.  Despite the staggering sum collected during that period, the report found that the DOJ does not collect data to measure how often seizures and forfeitures advance or relate to criminal investigations. 

I joined in reintroducing S. 4074 the Fifth Amendment Integrity Restoration (FAIR) Act, led by Senator Rand Paul (R-Kentucky).  This legislation would better protect property owners from wrongful property seizures and decrease potential monetary incentives for agencies to seize assets.  I have co-sponsored this legislation in multiple congresses because it would put the burden of proof where it should be—on the government, not innocent Americans.  The government would have to prove the assets were used to facilitate criminal activity.  Importantly, to address unjust incentives, the legislation would require proceeds from the disposition of seized property to be deposited in the General Fund of the U.S. Treasury, instead of going to the agencies seizing property. 

Reintroduction of this legislation builds on ongoing efforts to end forfeiture abuses.  This includes urging the DOJ to reform its asset forfeiture practices.  For example, in a 2017 letter to the DOJ, fellow senators and I requested the retraction of the Department’s expansion of its use of civil asset forfeiture writing, “Civil forfeiture does not reflect the fundamental principle of ‘innocent until proven guilty’ that is vital to our nation’s criminal justice system.  Law enforcement can confiscate property from individuals without ever giving them a day in court, and it does so with increasing regularity. . . . In 2014 alone, the federal government took more cash and property from Americans than burglars did.”  I also joined fellow senators in urging our colleagues in the Senate to deny the use of federal funding for expanding DOJ’s civil asset forfeiture program. 

Additionally, the U.S. Supreme Court applied constitutional restrictions to state civil asset forfeiture actions in a 2019 decision determining the Eighth Amendment, our Constitution’s protection against excessive fines, applies to the states.  The Court found that excessive fines undermine other liberties.  This is a step in the right direction as it pertains to protecting property rights, but civil asset forfeitures may still be subject to abuse.   

The Fifth Amendment to our Constitution clearly states that no person shall be deprived of life liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.  As civil forfeiture and other reforms are discussed in the overall context of rebuilding the lost confidence in many institutions designed for the purposes of keeping communities safe, I continue to maintain that the vast majority of law enforcement officers are hard-working Americans who put their lives on the line every day to keep our communities safe.  Unfortunately, we have seen several instances of horrific and inexcusable conduct by some very bad actors under the guise of law enforcement.  Reforms are needed.  I will continue to work with my colleagues in Congress and the Administration to end civil forfeiture abuses and continue to support legislation to improve and reform policing practices, accountability and transparency. 

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