Lawmakers Heighten Burden of Proof for Asset Seizure in New Bill

Several U.S. senators have introduced a new bill that aims to heighten the burden of proof for asset forfeiture.

Under federal law, law enforcement officials only need to prove their case by a “preponderance of the evidence” to legally confiscate the assets of an individual connected to a crime. As long as the facts are simply “more likely true than not,” then the burden is met. Individuals do not even need to be charged or convicted of the crime in order for authorities to take their property.

Some state lawmakers have passed laws that heighten the burden for confiscating assets as a way to mitigate asset forfeiture abuse. However, many state authorities have skirted this requirement by simply “federalizing” the investigation-a loophole whereby state authorities contact the DEA or other federal agency to get their case under federal jurisdiction.

But some lawmakers believe that the current practice on both the federal and state level infringe on a person’s due process rights. Several U.S. senators have introduced a new federal law that aims to heighten the burden requirements law enforcement officials must meet to seize property or assets.

The Fifth Amendment Integrity Restoration Act Of 2014

The new Senate bill is called the FAIR Act, or the Fifth Amendment Integrity Restoration Act of 2014. Under the new bill, officials would need to prove their case by “clear and convincing evidence” rather than by a “preponderance of evidence” before they can seize property connected to a criminal activity. (The “clear and convincing evidence” standard means that authorities would have to prove that the evidence gathered is substantially more true than not.)

Part of the language of the FAIR Act states that:

“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-

Along with heightening the standard of proof, the bill also stipulates that funds received from asset forfeiture instances are to be redirected to the Treasury’s General Fund rather than the Attorney General’s Asset Forfeiture Fund. The goal of this provision is to stop any incentive to profit from the seized property.

If the bill passes in the Senate, it will go on to the House of Representatives for a vote. However, given the upcoming recess and election season, it is likely lawmakers will not act on the bill until next year.