[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8997 Introduced in House (IH)]

<DOC>






116th CONGRESS
  2d Session
                                H. R. 8997

      To eliminate civil asset forfeiture, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 17, 2020

  Mr. Amash introduced the following bill; which was referred to the 
Committee on the Judiciary, and in addition to the Committee on Energy 
    and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
      To eliminate civil asset forfeiture, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Civil Asset Forfeiture Elimination 
Act''.

                      TITLE I--FEDERAL FORFEITURE

SEC. 101. CONFORMING AMENDMENTS TO TITLE 18.

    (a) General Rules for Civil Forfeiture Proceedings.--Section 983 of 
title 18, United States Code, is amended to read as follows:
``Sec. 983. Prohibiting civil forfeiture
    ``No person shall be required, under the laws of the United States, 
to forfeit to the United States any property, real or personal, 
pursuant to a civil forfeiture proceeding, including a nonjudicial 
civil forfeiture proceeding.''.
    (b) Foreign Forfeiture.--Section 981 of title 18, United States 
Code, is amended to read as follows:
``Sec. 981. Forfeiture involving foreign countries
    ``(a) Arrest or Charge in a Foreign Country.--
            ``(1) In general.--If any person is arrested or charged in 
        a foreign country in connection with an offense that would give 
        rise to the forfeiture of property in the United States under 
        the Controlled Substances Act, the Attorney General may apply 
        to any Federal judge or magistrate judge in the district in 
        which the property is located for an ex parte order restraining 
        the property subject to forfeiture for not more than 30 days, 
        except that the time may be extended for good cause shown at a 
        hearing conducted in the manner provided in rule 43(e) of the 
        Federal Rules of Civil Procedure.
            ``(2) Application.--The application for the restraining 
        order shall set forth the nature and circumstances of the 
        foreign charges and the basis for belief that the person 
        arrested or charged has property in the United States that 
        would be subject to forfeiture, and shall contain a statement 
        that the restraining order is needed to preserve the 
        availability of property for such time as is necessary to 
        receive evidence from the foreign country or elsewhere in 
        support of probable cause for the seizure of the property under 
        this subsection.
    ``(b) Transfer.--
            ``(1) In general.--Whenever property is criminally 
        forfeited under this chapter, the Attorney General or the 
        Secretary of the Treasury, as the case may be, may transfer the 
        forfeited personal property or the proceeds of the sale of any 
        forfeited personal or real property to any foreign country 
        which participated directly or indirectly in the seizure or 
        forfeiture of the property, if such a transfer--
                    ``(A) has been agreed to by the Secretary of State;
                    ``(B) is authorized in an international agreement 
                between the United States and the foreign country; and
                    ``(C) is made to a country which, if applicable, 
                has been certified under section 490(b) of the Foreign 
                Assistance Act of 1961.
        A decision by the Attorney General or the Secretary of the 
        Treasury pursuant to this subsection shall not be subject to 
        review. The foreign country shall, in the event of a transfer 
        of property or proceeds of sale of property under this 
        subsection, bear all expenses incurred by the United States in 
        the seizure, maintenance, inventory, storage, forfeiture, and 
        disposition of the property, and all transfer costs. The 
        payment of all such expenses, and the transfer of assets 
        pursuant to this paragraph, shall be upon such terms and 
        conditions as the Attorney General or the Secretary of the 
        Treasury may, in his discretion, set.
            ``(2) Rule of construction.--The provisions of this section 
        shall not be construed as limiting or superseding any other 
        authority of the United States to provide assistance to a 
        foreign country in obtaining property related to a crime 
        committed in the foreign country, including property which is 
        sought as evidence of a crime committed in the foreign country.
    ``(c) Definitions.--For purposes of this section--
            ``(1) the term `Attorney General' means the Attorney 
        General or his delegate; and
            ``(2) the term `Secretary of the Treasury' means the 
        Secretary of the Treasury or his delegate.''.
    (c) Civil Forfeiture of Fungible Property.--Section 984 of title 
18, United States Code, is repealed.
    (d) Civil Forfeiture of Real Property.--Section 985 of title 18, 
United States Code, is repealed.
    (e) Access to Records.--Section 986 of title 18, United States 
Code, is amended to read as follows:
``Sec. 986. Access to records in bank secrecy jurisdictions
    ``(a) In General.--In any ancillary proceeding in any criminal 
forfeiture case governed by section 413(n) of the Controlled Substances 
Act (21 U.S.C. 853(n)), in which--
            ``(1) financial records located in a foreign country may be 
        material to any claim or to the ability of the Government to 
        respond to such claim; and
            ``(2) it is within the capacity of the claimant to waive 
        the claimant's rights under applicable financial secrecy laws, 
        or to obtain the records so that such records can be made 
        available notwithstanding such secrecy laws,
the refusal of the claimant to provide the records in response to a 
discovery request or to take the action necessary otherwise to make the 
records available shall be grounds for judicial sanctions, up to and 
including dismissal of the claim with prejudice.
    ``(b) Privilege.--This section shall not affect the right of the 
claimant to refuse production on the basis of any privilege guaranteed 
by the Constitution of the United States or any other provision of 
Federal law.''.
    (f) Anti-Terrorist Forfeiture Protection.--Section 987 of title 18, 
United States Code, is repealed.
    (g) Conforming Amendments.--The table of sections for chapter 46 of 
title 18, United States Code, is amended--
            (1) by amending the item related to section 981 to read as 
        follows:

``981. Forfeiture involving foreign countries.'';
            (2) by amending the item related to section 983 to read as 
        follows:

``983. Prohibiting civil forfeiture.'';
            (3) by striking the items related to sections 984 and 985;
            (4) by amending the item related to section 986 to read as 
        follows:

``986. Access to records in bank secrecy jurisdictions.''; and
            (5) by striking the item related to section 987.

SEC. 102. CONFORMING AMENDMENTS TO THE CONTROLLED SUBSTANCES ACT.

    (a) Criminal Forfeitures.--Section 413 of the Controlled Substances 
Act (21 U.S.C. 853) is amended--
            (1) in subsection (i)(4), by striking ``provisions of 
        section 511(e) of this title (21 U.S.C. 881(e))'' and inserting 
        ``provisions of section 511(a)''; and
            (2) in subsection (j)--
                    (A) by amending the heading to read as follows: 
                ``Applicability of Forfeiture Provisions'';
                    (B) by striking ``Except'' and inserting ``(1) 
                Except'';
                    (C) by striking ``section 511(d) of this title (21 
                U.S.C. 881(d))'' and inserting ``paragraph (2)''; and
                    (D) by adding at the end the following:
            ``(2) The provisions of law relating to the seizure, 
        summary and judicial forfeiture, and condemnation of property 
        for violation of the customs laws; the disposition of such 
        property or the proceeds from the sale thereof; the remission 
        or mitigation of such forfeitures; and the compromise of claims 
        shall apply to seizures and forfeitures incurred, or alleged to 
        have been incurred, under any of the provisions of this title, 
        insofar as applicable and not inconsistent with the provisions 
        hereof; except that such duties as are imposed upon the customs 
        officer or any other person with respect to the seizure and 
        forfeiture of property under the customs laws shall be 
        performed with respect to seizures and forfeitures of property 
        under this title by such officers, agents, or other persons as 
        may be authorized or designated for that purpose by the 
        Attorney General, except to the extent that such duties arise 
        from seizures and forfeitures effected by any customs 
        officer.''; and
            (3) in subsection (n)--
                    (A) in paragraph (2)--
                            (i) by striking ``pursuant to this section 
                        may, within thirty days of the final 
                        publication of notice or his receipt of notice 
                        under paragraph (1), whichever is earlier,'' 
                        and inserting ``may''; and
                            (ii) by striking ``The hearing shall be 
                        held before the court alone, without a jury.'';
                    (B) in paragraph (5), by striking ``the petitioner 
                may testify and present evidence and witnesses on his 
                own behalf, and cross-examine witnesses who appear at 
                the hearing.'' and inserting ``the petitioner or 
                counsel for the petitioner may testify and present 
                evidence and witnesses, and cross-examine witnesses who 
                appear at the hearing. Upon any showing by the 
                petitioner or counsel for the petitioner that he has 
                legal interest in property which has been ordered 
                forfeited to the United States, there shall be 
                established a rebuttable presumption that the order of 
                forfeiture is invalid with respect to the petitioner's 
                interest in property.'';
                    (C) in paragraph (6)--
                            (i) in the matter preceding paragraph (A), 
                        by striking ``If, after the hearing, the court 
                        determines that the petitioner has 
                        established'' and inserting ``In the case that 
                        there has been established a rebuttable 
                        presumption that the order of forfeiture is 
                        invalid with respect to the petitioner's 
                        interest in property, the Government may 
                        overcome such presumption if the Government 
                        establishes'';
                            (ii) by amending subparagraph (A) to read 
                        as follows:
                    ``(A) the defendant has a legal right, title, or 
                interest in the property, and such right, title, or 
                interest renders the order of forfeiture valid in whole 
                or in part because the right, title, or interest was 
                vested in the defendant rather than the petitioner or 
                was superior to any right, title, or interest of the 
                petitioner at the time of the commission of the acts 
                which gave rise to the forfeiture of the property under 
                this section; or'';
                            (iii) by amending subparagraph (B) to read 
                        as follows:
                    ``(B) the petitioner is not a bona fide purchaser 
                for value of the right, title, or interest in the 
                property or, at the time of purchase, had cause to 
                believe that the property was subject to forfeiture 
                under this section.''; and
                            (iv) in the matter following subparagraph 
                        (B)--
                                    (I) by striking ``the court'' and 
                                inserting ``After the hearing, the 
                                court''; and
                                    (II) by inserting before the period 
                                at the end the following: ``, or, if 
                                the forfeited property has already been 
                                disposed of by the Government in 
                                accordance with law, order the 
                                Government to compensate the petitioner 
                                for an amount equal to the value of the 
                                petitioner's interest in the property 
                                at the time the property was 
                                forfeited'';
                    (D) in paragraph (7), by striking ``Following the 
                court's disposition of all petitions filed under this 
                subsection, or if no such petitions are filed following 
                the expiration of the period provided in paragraph (2) 
                for the filing of such petitions'' and inserting ``180 
                days after final publication or receipt of notice under 
                paragraph (1)''; and
                    (E) by adding at the end the following:
            ``(8)(A) If a person with standing to contest the 
        forfeiture of property under this subsection is financially 
        unable to obtain representation by counsel, and the property 
        subject to forfeiture is real property that is being used by 
        the person as a primary residence, the court, at the request of 
        the person, shall ensure that the person is represented by an 
        attorney for the Legal Services Corporation with respect to the 
        claim.
            ``(B)(i) At appropriate times during a representation under 
        subparagraph (A), the Legal Services Corporation shall submit a 
        statement of reasonable attorney fees and costs to the court.
    ``(ii) The court shall enter a judgment in favor of the Legal 
Services Corporation for reasonable attorney fees and costs submitted 
pursuant to clause (i) and treat such judgment as payable under section 
2465 of title 28, United States Code, regardless of the outcome of the 
case.
                    ``(C) The court shall set the compensation for 
                representation under this subsection, which shall be 
                equivalent to that provided for court-appointed 
                representation under section 3006A of this title.''.
    (b) Forfeitures.--Section 511 of the Controlled Substances Act (21 
U.S.C. 881) is amended--
            (1) by striking subsections (a), (b), (c), and (d);
            (2) by redesignating subsection (e) as subsection (a);
            (3) in subsection (a)(1), as redesignated, by striking 
        ``civilly or'';
            (4) by striking subsections (f), (g), (h), (i), and (j); 
        and
            (5) by redesignating subsection (l) as subsection (b).

                       TITLE II--STATE FORFEITURE

SEC. 201. FINDINGS; SENSE OF CONGRESS.

    (a) Findings.--Congress finds the following:
            (1) The Constitution authorizes and obligates each branch 
        of the Federal Government to protect individual rights.
            (2) Congress is specifically authorized by the Fourteenth 
        Amendment to provide remedies for States' violations of 
        individual rights secured by the Constitution.
            (3) The Constitution secures the rights of individuals whom 
        the Government seeks to punish for violating its laws.
            (4) The Government's use of in rem proceedings to forfeit 
        property to punish legal violations without affording property 
        owners the rights of criminal defendants plainly violates their 
        constitutionally secured rights.
            (5) The Government's use of a legal tool at the time of the 
        founding does not preclude its being incompatible with 
        constitutionally secured rights.
            (6) The long-term failure of Congress, presidents, and the 
        judiciary to recognize the illegitimacy of the Government's 
        civil forfeiture practices does not divest them of the 
        authority to do so.
            (7) The Government cannot lawfully jettison the rights of 
        the accused for the sake of convenience and profit.
            (8) The early use of civil forfeiture in the United States 
        was limited to admiralty and revenue contexts, in which the 
        existence of a legal violation and the identity of the property 
        used to effect it were often self-evident, and the owner of the 
        property to be seized was often unobtainable.
            (9) Although the limitations on early civil forfeiture 
        practices do not prevent those practices from being 
        constitutionally infirm, they do materially distinguish the 
        early practices from modern civil forfeiture.
            (10) The modern use of civil forfeiture by States is not 
        limited to admiralty or revenue contexts, its reach extends far 
        beyond property used to commit an offense, and it is used often 
        to supplement, rather than recover, the Government's revenues.
            (11) Civil forfeiture statutes and precedents incorporate 
        certain protections for property owners that, although limited, 
        erode the nature of the proceedings as truly in rem and betray 
        the punitive character of civil forfeiture.
            (12) The tortured status of civil forfeiture in current 
        law, in which the fiction of the property as the defendant is 
        sustained, yet the interests of property owners are, to a 
        limited extent, nonetheless recognized, is the inevitable 
        result of grandfathering civil forfeiture into a constitutional 
        system that otherwise secures the rights of the accused.
    (b) Sense of Congress.--It is the sense of Congress that the 
Constitution authorizes and obligates Congress to prohibit the use of 
civil asset forfeiture by the States.

SEC. 202. STATE CIVIL ASSET FORFEITURE.

    (a) In General.--Property owned by a person may be forfeited to a 
State pursuant to a civil proceeding only after--
            (1) criminal conviction of such person for violation of 
        State criminal law; or
            (2) a civil proceeding in which--
                    (A) the State proves that the person who owns the 
                property has committed the offense giving rise to 
                forfeiture; and
                    (B) the person who owns such property is entitled 
                to all rights applicable to criminal defendants under 
                the Constitution, including the right to be represented 
                by counsel and the right to trial by jury.
    (b) Federal Cause of Action.--A person aggrieved by a violation of 
subsection (a) may bring a civil action against the State in the 
appropriate Federal district court for relief, including return of 
forfeited property and enforcement of the procedures described in 
subsection (a).

SEC. 203. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall apply with 
respect to--
            (1) forfeiture proceedings occurring on or after the date 
        of enactment of this Act; and
            (2) forfeiture proceedings pending on or after such date.
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