“The FAIR Act sets a higher bar for seizing private property, but still allows for civil forfeiture in the absence of a criminal conviction. The legislation requires:
“If the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that…there was a substantial connection between the property and the offense; and the owner of any interest in the seized property—(i) used the property with intent to facilitate the offense; or knowingly consented or was willfully blind to the use of the property by another in connection with the offense.”
The bill requires that seizures be conducted in court rather than through administrative processes and also guarantees legal representation for federal forfeiture targets.
The FAIR Act isn’t a perfect bill. Many reformers will object that forfeiture should require the criminal conviction of the person whose money and property is being taken. Draining somebody’s bank account and nabbing their car keys may not be as dramatic as throwing them in a prison cell, but it’s a harsh punishment all the same and should require full due process. Still, some improvement is better than none for a practice that has largely served as an exercise in legalized highway robbery.”
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“”Police abuse of civil asset forfeiture laws has shaken our nation’s conscience. Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime,” the ACLU points out in a summary of the practice. “Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.””
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“”Civil asset forfeiture—which allows the government to take property supposedly linked to crime without charging, let alone convicting, the owner—exploded after Congress started letting law enforcement agencies keep the loot in the mid-1980s,” Reason‘s Jacob Sullum wrote in 2015. “Many states followed the federal government’s example, giving police and prosecutors a financial interest in forfeiture by awarding them anywhere from 45 percent to 100 percent of the money it generated.”
That empowered a powerful bloc supporting the status quo at the state and federal level, and it’s not shy about calling out opponents. In Missouri, supporters of forfeiture reform were labeled “anti-police and soft on the war on drugs,” St. Louis Public Radio reported in 2019. That was enough to scare away many lawmakers who traditionally defer to cops and prosecutors.”