U.S. House bill raises the bar for federal civil asset forfeiture

A U.S. House bill aims to reform the federal civil asset forfeiture system by raising the bar for seizures and providing the right to counsel to owners of confiscated property.

Rep. Tim Walberg, R-Tipton, submitted House Resolution 1525, the Fifth Amendment Restoration Act of 2023, in March. Walberg calls it the FAIR Act. The bill would enhance the rights of property owners under the Fifth Amendment to the U.S. Constitution’s guarantee that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fifth Amendment also provides that private property shall not “be taken for public use, without just compensation.”

Civil asset forfeiture differs from criminal asset seizure, in which an owner of property is convicted in criminal court and assets seized by police in the course of the investigation are forfeited to the government. Civil forfeiture is treated in civil or administrative courts, where property can be forfeited even though the owner has not been convicted of a crime.

The Walberg bill would create a standard of “clear and convincing evidence” for federal asset forfeitures. It creates the right to government-funded counsel for forfeiture targets who can’t afford lawyers. That right exists in criminal trials, but not currently in civil matters such as asset forfeiture.

“The FAIR Act eliminates administrative forfeiture,” the Institute for Justice notes, “ensuring that only federal courts, not administrative agencies, can order civil forfeitures to the federal government.”

Read it for yourself: House Resolution 1525 of 2023

Property owners currently have limited recourse in civil asset forfeiture cases. Law enforcement agencies can allege that a person’s assets were used in a criminal act or resulted from one, then seize that property under a probable cause standard. Prosecutors are held to a lower standard of evidence in civil court, while defendants must prove that their property was not involved in criminal activity. People often lose their property even after they have been cleared of criminal wrongdoing

As a Congressional Research Service report on civil asset forfeiture explains:

Although crime triggers all forfeitures, they are classified as civil forfeitures or criminal forfeitures according to the nature of the procedure which ends in confiscation. Civil forfeiture is an in rem proceeding. The property is the defendant in the case. Unless the statute provides otherwise, the innocence of the owner is irrelevant—it is enough that the property was involved in a violation to which forfeiture attaches.

“The innocence of the owner is irrelevant” is the dynamic the Walberg bill is meant to reform.

Walberg’s bill addresses asset forfeiture at the federal level. The Mackinac Center for Public Policy recommends ending civil asset forfeiture in Michigan.

The bill has a bipartisan cast of sponsors. Six of its nine co-sponsors are Democrats; only three are Republicans like Walberg. None of the co-sponsors hails from Michigan.

The Fifth Amendment to the United States Constitution reads in full:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

More on Michigan’s asset forfeiture standards.