Date: Wed, 8 Dec 93 15:56:15 PST
From: [c--u] at [delfin.com] (Cristina Ungstad Yu)
Subject: Asset Forfeiture
Ages ago you expressed an interest in Congressman John Conyer's asset
forfeiture reform bill. He was in the process of drafting it at the
time. Sorry it's taken me so long to get back to you.
In late October, Congressmember John Conyers introduced the Asset Forfeiture
Justice Act. This act would modify current civil asset forfeiture laws
to bring them in line with the Constitution. The Act is very well
thought out. It was too lengthy to type in, but I did type in the
section-by-section analysis. Please consider calling or writing to
your congressmembers and newspapers to urge them to support this Act.
Some addresses:
U.S. House of Representatives
Washington, D.C. 20515
U.S. Senate
Washington, D.C. 20510
This is where the Act currently stands:
Oct 22, 93 Referred to the House Committee on Judiciary.
Oct 22, 93 Referred to the House Committee on Energy and Commerce.
Oct 27, 93 Referred to the Subcommittee on Crime and Criminal Justice.
Oct 28, 93 Referred to the Subcommittee on Trade.
I typed this in, so please excuse any typos.
----------------
Asset Forfeiture Justice Act
SECTION-BY-SECTION ANALYSIS
This bill provides comprehensive due process and oversight
protections for individuals subject to civil asset forfeiture and
redistributes the assets seized.
SEC. 2. REQUIRE CONVICTION
This section requires that forfeiture of property not occur
until the owner has been convicted of a crime upon which the
forfeiture is based. The owner has no property rights in any
contraband, including controlled substances and drug paraphernalia.
[Please note that this is a change. Asset forfeiture laws currently
don't provide for forfeiture of drug paraphernalia.-CY]
SEC. 3. NOTICE
This section requires that notice by sent to the owner or
other interested parties (i.e. lienholder) no later than 60 days
after the property is seized.
SEC. 4. BURDEN OF PROOF
This section shifts the burden of proof to the government
and raises the standard of proof required for civil forfeiture
proceedings to clear and convincing evidence.
SEC. 5. PRELIMINARY HEARING
This section requires a preliminary adversarial hearing
prior to seizure.
Exemptions include: cases in which seizure is incident to
arrest, or search under a search warrant, or an inspection under
an administrative inspection warrant, and those cases involving
exigent circumstances, i.e.., highway and airport stops. A
preliminary hearing will be granted immediately after seizure.
SEC. 6 ELIMINATION OF BOND: ADEQUATE REPRESENTATION
This section eliminates the bond requirement (10% of the
value of the property or $2500, whichever is less), and allows
the property owner to file a claim within 60 days from the date
of notice that the property was seized. It also establishes the
right to adequate counsel.
SEC. 7. RIGHT TO JURY TRIAL
This section establishes the right to a jury trial in civil
forfeiture cases.
SEC. 8. ATTORNEYS' FEES
Under this section, any property which has been paid or
pledged to pay for attorney fees cannot be subject to forfeiture
proceedings.
SEC. 9. IN PERSONAM
This section prohibits civil forfeiture proceedings from
being held in rem (actions instituted against the thing) and
requires them to be held in personam (actions directed to a
specific person) thereby extending due process protections to
property owners.
SEC. 10. FILING DEADLINES
This section lengthens the filing deadline for property
claimants from 10 to 60 days.
SEC. 11 PROPORTIONALITY
This section establishes that the value of the property
seized must be less than or of equal value to the value of the
property involved in the offense.
SEC. 12. ELIMINATION OF THE RELATION-BACK DOCTRINE
At present, the "relation-back doctrine" gives title to the
government of property at the moment that it is involved in
criminal activity. This section vests the right, title, and
interest in property only after a verdict in favor of the
government.
SEC. 13. PROPERTY SUBJECT TO SEIZURE
This section limits the types of property subject to seizure
to the drugs, raw materials, products, equipment, property used
or intended for use as a container, aircraft, vehicles, or
vessels, weapons, and equipment used in a drug enterprise.
SEC. 14. FORFEITURE PROCEEDS TO STATE TREASURIES
Under this section, all forfeiture proceeds transferred to
state and local law enforcement will be transferred directly to
State treasuries, for disposition according to State law.
SEC. 15. EXPANDED USE OF FORFEITURE PROCEEDS
Under this section, federal forfeiture proceeds will be made
available for community-based crime control programs, and drug
treatment, prevention and education programs.
This section also allocates fifty percent of forfeiture
proceeds for drug treatment, prevention and education programs,
and community-based crime control program[sic]. Not more than 10
percent of the total disbursed may be used for administrative
costs.
SEC. 16. PAYMENT OF INFORMANTS
Under this section the total paid to any individual
informant is limited to $250,000 per person per year. [It is
currently $250,000 or 25% of the value per *seizure*. -CY] This
section also requires the Attorney General to publish data
annually regarding the awards paid.
SEC. 17. ADOPTIVE SEIZURE
This section prohibits the States from transferring property
to the Federal government for the purpose of circumventing State
or local laws limiting use of disposal of the proceeds.
SEC. 18 REPORTING REQUIREMENTS
This section requires data to be maintained regarding all
persons from whom property is seized, including race, national
origin, gender and age.
This section also requires the States to account for the
disposition of all proceeds.
SEC. 19. MAINTENANCE OF SEIZED PROPERTY
This section requires the return of all property seized if
forfeiture proceedings have not been initiated within one year
from the data of seizure.
This section also requires payment of interest on any seized
coins, currency or negotiable instruments at a rate of six
percent, or the prevailing market rate, whichever is higher.
Compensation will be paid for any injury incurred by the property
seized.
SEC. 20. ADMINISTRATIVE AND CONTRACTING EXPENSES
This section limits administrative and contracting expenses
for each fiscal year to ten percent of the total amount paid from
the Asset Forfeiture Fund.
SEC. 21. REPORT OF CONGRESS
This section requires the Attorney General to transmit to
Congress a detailed report containing a description of the
administrative and contracting expenses paid from the Fund at the
end of each fiscal year.
SEC. 22. NOMINAL CONSIDERATION SALES OF LOW VALUE REAL PROPERTY
This section requires the Attorney General to make nominal
consideration sales of low value real property available to tax-
exempt organizations that provide direct services furthering
community-based crime control, housing, or education efforts in
those neighborhoods.
SEC. 23. ACTIONS UNDER THE TORT CLAIMS ACT
This section allows a claim to be filed under the Tort
Claims Act for the destruction, injury, or loss of property due
to the misfeasance, malfeasance, or nonfeasance incurred while
such property is in the custody of a law enforcement officer.