Justice Department Considers Forfeiture Reform

FORFEITURE August 1994

The Justice Department has developed a draft bill to send to Congress that would increase the burden prosecutors must show to conduct forfeitures of defendants' property (Justice Department Circulates Asset Forfeiture Reform Proposal, Drug Enforcement Report, July 25, 1994, p. 1).

Currently, if the government makes an initial showing of probable cause that the property was

implicated in illegal activity, then the defendant has the burden to show that the property was "innocent" or otherwise not subject to seizure. The proposed bill would shift the burden of proof from the defendant to the prosecution.

However, the bill gives the government the advantage in showing that the property should be subject to seizure. The proposed legislation would:

• Allow judges to draw an "adverse inference" against defendants who invoke the Fifth Amendment privilege against self-incrimination.
   
• Constrict the definition of "innocent owner" to the constitutional minimum. Currently, the definition varies from one federal statute to another. In drug and money-laundering cases the current standard is "actual knowledge." Under the proposed standard, a defendant would have to show that s/he did everything s/he could to prevent the illegal use of the property.
   
• Allow federal prosecutors to issue "civil investigative demands," the civil equivalent of a subpoena in asset forfeiture cases.
   
• Permit federal prosecutors to use federal tax returns in civil forfeiture cases. Usually, prosecutors are not allowed to use tax returns in non-criminal cases.

The administration proposal has not been introduced in Congress but is being circulated among concerned parties.

The proposal has been characterized by The National Association of Criminal Defense Lawyers (NACDL) as being pro-prosecution. Paul Levine of the NACDL said that the proposal has few reforms. "It actually strengthens the government's hand," he said. "It seems like the government has seized on the call for reform to introduce something that really isn't reform at all."

David B. Smith, chairman of the NACDL Task Force on Forfeiture Abuse, called the proposal "a quantum leap in the ability of government to intrude into people's affairs without any level of suspicion." "There are a whole lot of horrendous things in the bill that are not needed," Smith said. "It would give the government an unprecedented power in asset forfeiture that they have in no other area."

The Department of Justice's Executive Office for Asset Forfeiture denies that the proposal will give the police and prosecutors unfair advantages. Cary Copeland, director of the office said that "there is a sentiment that the current program tends to put the burden on the defendant [and that] we've had things our way a bit too much in terms of asset forfeiture." He said that they are trying to address these concerns. The administration's bill is being developed in response to calls in Congress for asset forfeiture reform.

Two bills have been introduced in the House of Representatives that would limit the government's ability to use asset forfeitures by shifting the burden of proof from defendants to prosecutors. H.R. 3347 was introduced by John Conyers (D-Mich), chairman of the House Government Operations Committee, and H.R. 2417 was introduced by Henry Hyde (R-Ill). The bills have received bipartisan support and together have more than 60 cosponsors.

In 1993 Attorney General Janet Reno told members of Congress that the Justice Department was planning to develop an asset forfeiture reform bill. Reno also requested that Congress should postpone consideration of the bills that had been introduced until the Justice Department's proposal was released. "Knowing of your Committee's interest in the Department's asset forfeiture program, I want you to know that I have requested a thorough review of the program," she wrote. "We will use the review to fashion a proposal for any necessary legal and administrative changes to the program." In the letter she said that the Justice Department's goal is "to maintain and strengthen, if necessary, this important and effective law enforcement tool, while at the same time improving current procedures to insure fairness and due process to all innocent property holders."

Because development of the administration's proposal is taking longer than promised, reforms are unlikely this year, say staff members of the House Judiciary Committee. Asset forfeiture reform is "not in the works right now and nothing is likely to happen this year," a Judiciary Committee staff member told Drug Enforcement Report. Committee Members said their focus this year has been on the Crime Bill, leaving little time for consideration of asset forfeiture reform.