This significantly changes what must be proved. Under the existing law, if the government's theory of forfeiture is that the property was used to commit or facilitate the commission of a crime, they must show by a preponderance of the evidence that there was a substantial connection between the property and the offense.
There is an "innocent owner" defense that protects the interests of innocent owners to the property. For property interests that were in existence at the time of the illegal acts, an innocent owner is one who did not know of the acts giving rise to forfeiture, or who upon learning of those acts did all that could be reasonably expected under the circumstances to terminate that use of the property. For an interest that acquired after the illegal conduct, an innocent owner is someone is a bona fide purchaser who did not know that the property was subject to forfeiture.
Paul's bill changes the requirement when the government's theory of forfeiture is that the property was use to commit or facilitate a crime to this, and modifies the innocent owner defense to get rid of the parts of it that are redundant in light of these changes:
(3) if the Government’s theory of forfeiture is that
the property 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—
(A) there was a substantial connection between the property
and the offense; and
(B) the owner of any interest in the seized property—
(i) intentionally used the property in connection with the
offense; or
(ii) knowingly consented or was willfully blind to the use
of the property by another in connection with
the offense
Note that under the current wording, if you had, say, a boat owned by three people who take turns with it (e.g., one owner runs the boat during the winter fishing crab, one runs the boat during part of the summer doing salmon tendering, and one takes people on whale watching trips), and one of the owners is also using it for smuggling, then the boat could be seized, but the two other owners would keep their interest as innocent owners. The net result would be the government would end up as partial owner of the boat.
Under the new language, it looks like the government has to show that all the owners were involved with, consented to, or were "willfully blind" to the smuggling. It does not define "willfully blind".
This seems to be a huge loophole. It should not be too hard for criminals to arrange for their major assets they use in their crimes (boats, planes, cars, real estate) to have a minority co-owner not connected to the crime and who has no idea the property is being used for crime and was not "willfully blind" to such use.
Or maybe not...I'm reading (3)(B) as saying that all the owners must be shown to meet (i) or (ii), but it may be possible to read it as meaning that at least one owner must meet (i) or (ii). This section needs to be rewritten.
This reform doesn't require a conviction for forfeiture, or even a charge. It only changes the burden of proof required for forfeiture (but still below that required in a criminal trial) and addresses the perverse financial incentive.
No one is advocating that criminals be allowed to keep the proceeds of crimes. What they are saying is that the burden of proof should be on the government instead of the current situation where guilt is presumed.
Indeed, many forfeiture victims never get their property back, nor are charges ever filed, without which they don't have standing to sue for return of their property.
That's not correct. If your property is seized, you can make a claim to get your property back regardless of whether or not the government ever files charges against you.
Your last line is puzzling to me. Is civil asset forfeiture a set of laws designed to systematically discriminate against a particular demographic group for the benefit of the more powerful demographic group? Jim Crow was a set of laws passed by white southerners to segregate and disenfranchise black southerners, in order to establish a privileged position for their demographic group in society. Who are the white and black southerners, respectively, in your analogy?
It's not really an analogy; The divide is still along similar racial lines. Civil asset forfeiture laws predominantly impact poor black or Hispanic people. Here's what the ACLU has to say: https://www.aclu.org/criminal-law-reform/civil-asset-forfeit...
" Asset forfeiture practices often go hand-in-hand with racial profiling and disproportionately impact low-income African-American or Hispanic people who the police decide look suspicious and for whom the arcane process of trying to get one’s property back is an expensive challenge. ACLU believes that such routine “civil asset forfeiture” puts our civil liberties and property rights under assault, and calls for reform of state and federal civil asset forfeiture laws."
>Is civil asset forfeiture a set of laws designed to systematically discriminate against a particular demographic group for the benefit of the more powerful demographic group?
Probably not designed to have that effect, but it does.
Yeah, Nixon's egalitarian crooking was often 'mistaken' for a Pinnacle-Empty Quiver, at least from a minority perspective. I guess some call it plausible deniablilty: "Corporatism done it, I ain't accountable!" For others, it might be something like Manifest Destiny, or historical inertia.
Actually, that is not true at all. When your property is seized you get a single-sided notification letter, which you must sign, that very clearly & briefly articulates the claims process.*
* at least at the city level this is true; I review all the civil forfeiture requests made by a city and every affidavit contains a copy of said notification.
There is an "innocent owner" defense that protects the interests of innocent owners to the property. For property interests that were in existence at the time of the illegal acts, an innocent owner is one who did not know of the acts giving rise to forfeiture, or who upon learning of those acts did all that could be reasonably expected under the circumstances to terminate that use of the property. For an interest that acquired after the illegal conduct, an innocent owner is someone is a bona fide purchaser who did not know that the property was subject to forfeiture.
Paul's bill changes the requirement when the government's theory of forfeiture is that the property was use to commit or facilitate a crime to this, and modifies the innocent owner defense to get rid of the parts of it that are redundant in light of these changes:
Note that under the current wording, if you had, say, a boat owned by three people who take turns with it (e.g., one owner runs the boat during the winter fishing crab, one runs the boat during part of the summer doing salmon tendering, and one takes people on whale watching trips), and one of the owners is also using it for smuggling, then the boat could be seized, but the two other owners would keep their interest as innocent owners. The net result would be the government would end up as partial owner of the boat.Under the new language, it looks like the government has to show that all the owners were involved with, consented to, or were "willfully blind" to the smuggling. It does not define "willfully blind".
This seems to be a huge loophole. It should not be too hard for criminals to arrange for their major assets they use in their crimes (boats, planes, cars, real estate) to have a minority co-owner not connected to the crime and who has no idea the property is being used for crime and was not "willfully blind" to such use.
Or maybe not...I'm reading (3)(B) as saying that all the owners must be shown to meet (i) or (ii), but it may be possible to read it as meaning that at least one owner must meet (i) or (ii). This section needs to be rewritten.