[Congressional Record Volume 145, Number 91 (Thursday, June 24, 1999)]
[House]
[Pages H4858-H4879]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   CIVIL ASSET FORFEITURE REFORM ACT

  The Committee resumed its sitting.
  Mr. HYDE. Mr. Chairman, may I inquire of the Chair how much time I 
have remaining.
  The CHAIRMAN. The gentleman from Illinois (Mr. Hyde) has 22\1/2\ 
minutes remaining.
  Mr. HYDE. Mr. Chairman, I am pleased to yield 6 minutes to the 
distinguished gentleman from Tennessee (Mr. Bryant).
  Mr. BRYANT. Mr. Chairman, I thank the gentleman from Illinois (Mr. 
Hyde) for yielding this time to me. It is with great respect that I 
rise in opposition to the underlying bill and urge my colleagues to 
support the Hutchinson substitute.
  The gentleman from Illinois (Mr. Hyde) and I have been together on 
many issues, and actually we are not that far apart on this one. The 
Hyde-Conyers bill, in many ways, has the same provisions that the 
Hutchinson substitute has, but I think the substitute makes some very 
important improvements to the bill.
  I do not think there is any question that this bill is good. The 
Hyde-Conyers bill needs to be passed into the law, at least some form 
of it does. It is time that we have the reform in the area of asset 
forfeiture that that bill speaks directly to.
  It is very important in this country, I think, that we begin to 
address the due process involved in property rights. Those are very 
important issues, and I am proud to be a part of this. I just think 
that the bill, as it is written, while well constructed and well 
thought out and certainly well intended, needs some fine tuning, if you 
will, some changes to it, I think, to strike a more reasonable balance.
  Before, things were out of balance one way, and I want to be careful, 
as I urge the adoption of the Hutchinson substitute, that we do not 
take it too far out of balance the other way.
  There are a number of law enforcement, some 19 major law enforcement 
groups that support the Hutchinson substitute, among those, the Drug 
Enforcement Administration, the DEA, the Fraternal Order of Police, the 
National Troopers Association, the National Sheriff's Association, the 
National Association of Chiefs of Police, and many others.
  The reason they support this is because, as we all agree here today, 
we need to be able to seize the ill-gotten gains of criminals, seize 
that property, and use that, convert that over and use that to fight 
more crime. I think that is very important. We agree on that.
  Now, I would like to see this go a little further on the other end, 
and I have asked that report language be put into this bill that there 
be a little bit more accountability on the use of these funds.
  I know in my area back in Western Tennessee, this is a very important 
issue right now, is what happens to these funds once they get into the 
hands of law enforcement. I would like to see some very broad 
community-based, through a government agency, through the mayor, the 
county mayor, city mayor, oversight of these funds, with all due 
respect to the necessity sometimes in police work that they have 
flexibility and secrecy in using some of these funds. But at least 
there will be some accountability on the end of where it is used to 
fight crime as it is supposed to be done.
  But in the Hutchinson substitute, we have brought the Hyde-Conyers 
bill, I think, back to a better balance. Rather than requiring that law 
enforcement prove by a clear and convincing bit of evidence that this 
money was ill-gotten and as a result of crime, we use the normal, the 
customary standard in civil cases, which is what this is, and that is a 
preponderance of the evidence. I am sure we have people that agree with 
that.
  We also talk about furnishing some lawyers to people for free. Now, 
in the civil context, that is not typically done in any case. There are 
hardship cases where it is rarely done, and certainly that would apply 
here given the circumstances of the particular forfeiture, the amount 
of money involved, the needs of the people. That can be done. But on a 
routine required basis that the underlying bill would require, I do not 
think we need that.

                              {time}  1430

  I think that would be very, very expensive and probably result in 
much more litigation than we really need.

[[Page H4859]]

  Also, the hardship provision is addressed in the Hutchinson 
amendment, and it refines that language. Certainly there are 
circumstances where I think the court should have the authority if it 
creates a hardship and the property can be protected, that that ought 
to happen; that the person ought to have that property returned pending 
the trial. But in many cases it has been shown that evidence, money, or 
whatever might be seized disappears, along with people sometimes. So if 
we can assure that there is adequate protection there to ensure that 
this will be there when the trial comes up, that the property will 
still be there and the property owner will still be there, then 
certainly if that is a hardship situation, that can be addressed.
  So I would respectfully disagree with my colleague from Michigan (Mr. 
Conyers) that we are miles apart on this. I think we are very close on 
many of the issues, and if we can just work through a couple more of 
these issues and agree to these, which, again, I think the Hyde-Conyers 
bill is good but can be made better, then I think we would be better 
served.
  Let me clear up one thing, too, that the gentleman from Michigan (Mr. 
Conyers) said in terms of the percentages being high of people being 
caught with money but no drugs. The way the system works in this is 
when there are couriers, they do not have them both at the same time. 
They either have the money or they have the drugs, but they do not have 
them both. They carry the money to point X to get the drugs to bring 
back to point Y. So we either find drugs on the person or money on the 
person, depending which way they are going.
  So it is not unusual in that context for there to be a seizure of 
money without finding any drugs on the person, because we are usually 
dealing with a mule, a courier, somebody whose job it is to go to a 
drug source city and bring the drugs back and pay for it as they go 
down. So that is not anything out of the ordinary.
  I think this is a very good cause we are working for. I think we are 
all trying to achieve the same results, and I just simply ask that we 
go back to the normal standards that we have in a civil case, 
preponderance of evidence, no appointed counsel, and work closer on the 
hardship situations to ensure that the money, the evidence, and the 
defendant will be there at trial.
  Mr. CONYERS. Mr. Chairman, I yield myself 30 seconds.
  The problem with the assertions of the gentleman from Tennessee (Mr. 
Bryant) that a drug courier is either carrying money or drugs is quite 
correct. But the problem is, unless they are drug couriers, we could 
end up with a person with large amounts of money on them that they have 
to then prove where and how they got the money, which is a little bit 
out of line. And if they are carrying drugs, that is patently illegal, 
too, so they will be arrested.
  Mr. Chairman, I yield such time as he may consume to the gentleman 
from Massachusetts (Mr. Delahunt), a law enforcement prosecutor of many 
years and a valued member of the Committee on the Judiciary.
  Mr. DELAHUNT. Mr. Chairman, I thank the gentleman for yielding me 
this time, and I rise in support of Hyde-Conyers bill and in opposition 
to the substitute proffered by the gentleman from Arkansas (Mr. 
Hutchinson) and the gentleman from New York (Mr. Weiner).
  Mr. Chairman, a few days from now the sun will finally set on the 
Independent Counsel Act that has come to embody for many Americans all 
the evils of prosecutorial excess. But the problems illustrated by the 
Independent Counsel Act are not unique to special prosecutors, nor are 
they confined to cases involving Presidents and high civil officials.
  The potential for abuse and excess is inherent in a system of justice 
which delegates such enormous power and discretion to every prosecutor. 
Now, most prosecutors exercise these awesome responsibilities with 
decency and restraint. But, unfortunately, there are a few who do not, 
and they bring the entire system of justice into disrepute, and they 
encourage, by their actions, public cynicism and, unfortunately, erode 
respect for the rule of law.
  Now, the Hyde-Conyers bill recognizes that asset forfeiture is an 
extraordinarily powerful tool in the hands of a prosecutor, a tool that 
is so potent, and under current law so easy to apply, that it is also 
highly prone to abuse. And, in fact, there is a growing litany of cases 
documenting that abuse occurs. This bill recognizes that the time has 
come to impose reasonable, and let me underscore reasonable, restraints 
on this power so as to maintain public confidence in the fundamental 
fairness and integrity of our criminal justice system that is so 
essential in a democracy.
  And let us be clear. This bill would not hamper the ability of law 
enforcement to go after the bad folks, the drug kingpins and racketeers 
who are the proper targets of forfeiture laws. What it would do is to 
prevent law enforcement officials from abusing these laws to the 
detriment of ordinary innocent citizens. It would ensure that when 
prosecutors wrongfully seize, wrongfully seize the property of owners 
who are innocent of any crime, the owners have the ability to recover 
their property and make themselves whole.
  And make no mistake, we are not talking about a few marginal cases. 
Some 80 percent of the people whose property is seized are never even 
charged with a crime. Think of that, Mr. Chairman, 80 percent of those 
whose property is seized are never even charged with a crime.
  Now, let me put forth some examples; like the traveler whose property 
was seized at the Detroit airport because he was carrying a large 
amount of cash and simply happened to fit a profile of a drug courier. 
No arrest, no conviction; or the 33 tenants in a New York apartment 
building who were evicted by the government because the building had 
previously been home to a drug ring, which none of the tenants were 
connected with and had no knowledge of, yet they were evicted; or the 
hotel owner in Houston whose hotel was seized by Federal agents after 
patrons were accused of drug trafficking; or how about the 72-year-old 
woman in Washington, D.C., right here in the Nation's Capital, whose 
home and personal effects were seized by the FBI because her nephew, 
her nephew, who was staying in the house overnight, was suspected of 
selling drugs from the porch. Suspected of selling drugs from her 
porch. A 72-year-old woman.
  The irony is that all of these people would have been entitled to 
some due process if they had been charged with a crime. If they had 
been charged criminally, they would have had a shot. But under the 
civil forfeiture laws, the government can seize the property of 
innocent owners without even triggering basic minimal due process 
requirements. That is not, I daresay, what most of us think about when 
we think of the American system of justice.
  Supreme Court Justice Clarence Thomas has likened this situation to, 
and I am quoting now, ``a roulette wheel employed to raise revenue from 
innocent but hapless owners whose property is unforeseeably misused,'' 
rather than a tool for ensuring that justice is done.
  In 1997, the Court of Appeals for the 7th Circuit confessed itself to 
be enormously troubled by the government's increasing and virtually 
unchecked use of the civil forfeiture statutes and the disregard for 
due process that is buried in those statutes.
  We cannot allow, I submit, such a situation to continue, Mr. 
Chairman, and I urge my colleagues to support Hyde-Conyers and defeat 
the substitute.
  Mr. HYDE. Mr. Chairman, I yield 5 minutes to the gentleman from South 
Carolina (Mr. Graham).
  Mr. GRAHAM. Mr. Chairman, I thank the gentleman for yielding me this 
time, and I, too, rise in support of the Hyde-Conyers Civil Asset 
Forfeiture Reform Act of 1999, and I would ask the Members listening to 
the debate to focus their attention on the title and see if it lives up 
to its billing: Reform Act. What are we trying to do; and is it an act 
in need of reform; and do the measures envisioned in this bill create 
some reform.
  I would point the Members' attention to the burden of proof. There is 
a dramatic change in this bill from existing law, and I believe it 
justifies the title of reform and is very much a necessary measure in 
terms of reforming the law.
  Imagine this: An individual has a piece of property, an innocent 
owner. At least they want to claim that status. And that individual 
winds up facing their government after a seizure

[[Page H4860]]

has occurred through a mere probable cause analysis, and they now have 
to prove by a preponderance of evidence that they are innocent and that 
the forfeiture should never have occurred. I think that is appalling. I 
do not believe in America any citizen should have to go into a court 
and fight the government and prove that they are innocent in terms of 
their connection to their property. While it may not be depriving them 
of a liberty interest, it certainly is depriving them of a property 
interest.
  This bill, quite rightly, corrects that measure, and it does reform 
the burden of proof because it places upon the government the duty to 
prove that the assets seized should be taken and denied to the rightful 
owner by a clear and convincing evidence standard.
  The substitute changes the burden, which I think is an acknowledgment 
that the basic law is very much off base. It is a matter of what 
standard we would like to place upon the government before people are 
denied their property. In my opinion, the standard should be more 
rather than less; that when we are facing the government, they should 
have a strong burden before they can take our property forever from us. 
And the clear and convincing evidence standard in civil law, I think, 
is the appropriate remedy, and the preponderance of evidence standard 
that the substitute bill has is an inappropriate remedy.
  The innocent owner defense. Most of us cannot imagine a situation 
where we find ourselves before a Federal court, losing our property 
because of someone else's misdeeds, but it happens every day in this 
country. As my friend from Massachusetts (Mr. Delahunt) indicated, 80 
percent of the people affected by this law are never prosecuted. What 
if an individual owned an asset or were a joint titled owner of a car, 
and somebody in the family or some friend chooses to engage in criminal 
activity with that individual's vehicle without their knowledge or 
without their permission. Under the current law that individual has to 
go and prove they are innocent before they lose their property.
  We have talked about changing the burden. Before an individual's 
property could be taken under what the gentleman from Illinois (Mr. 
Hyde) and the gentleman from Michigan (Mr. Conyers) have done, they 
have to make a compelling case that that individual was involved, that 
that individual had knowledge. And what this law does, Mr. Chairman, is 
it brings uniformity across the board in civil asset forfeiture 
statutes under the Federal law, bringing uniformity to the innocent 
owner defense. In civil forfeiture cases involving illegal gambling 
activities, there is no such innocent owner defense, and I think that 
is appalling.
  So the good thing about this bill, in my opinion, is it brings 
uniformity and it establishes a standard that makes a lot of common 
sense; that the government has to prove at the time of the instance in 
question that an individual did not know of the conduct giving rise to 
the forfeiture, because if someone does not know of the conduct and was 
not involved, they should not lose their property because someone 
intends to violate the law or does violate the law, because that 
individual has done nothing wrong.
  Upon learning of the conduct, if a person does all that is reasonably 
expected under the circumstances to terminate such use of the property, 
the law should not allow the taking of a person's property because they 
acted in a responsible manner.
  This bill brings uniformity to the law. It is a haphazard catch-as-
you-can series of statutes, and now is the time to correct that as we 
go into the next century.

                              {time}  1445

  An appointment of counsel. This bill I believe remedies a very big 
problem. A lot of people are subject to losing their assets under this 
law, and when it comes time to have their day in court and they are an 
indigent person or without the means to have counsel, for whatever 
reasons, they are facing the Government alone. That is no place to be 
when their property is taken from them by the Government.
  It is true we normally do not appoint counsels in civil matters 
because civil matters are usually between two citizens litigating over 
some property interest. This is different, Mr. Chairman. This is a 
person fighting the Government for their property. I believe it is only 
right and fitting that we appoint counsel under those circumstances.
  I ask my colleagues to support this measure.
  Mr. CONYERS. Mr. Chairman, I am pleased to yield 3 minutes to my 
friend, the gentleman from New York (Mr. Weiner.)
  Mr. WEINER. Mr. Chairman, I thank the gentleman for yielding.
  Mr. Chairman, I rise in support of the Hutchinson amendment and with 
deep reservations about the base bill, the Hyde-Conyers bill.
  There is a great deal, frankly, that we agree about in this debate. 
My good friend from Massachusetts read a litany of concerns about the 
present civil forfeiture dynamic. It is broken. It is broken. I believe 
that the Hyde effort is one that is laudable and goes a long way 
towards trying to fix the problem. But there also seems to be emerging 
in this House a fundamental debate about whether or not we should have 
civil forfeiture at all. And I would argue that we should, and I would 
argue that it has been a tool that has been very helpful.
  I would argue that law enforcement agencies all around this country 
have rallied to the cause of trying to preserve civil asset forfeiture 
because it is vitally necessary to continue the downward trend in crime 
that we have seen. That is why sheriff's associations around the 
country have supported the Hutchinson-Weiner-Sweeney substitute. That 
is why the City of New York and Los Angeles and other places have all 
supported the idea of making it important that the Government prove its 
case but just have a reasonable standard.
  Now, since we have heard so many horror stories about what is wrong 
with civil forfeiture, I think it is important that we understand that 
there are many times where it is used in ways that I think we all agree 
it is important, like a crack house in the Middle District of Tennessee 
that over and over again was the subject of criminal activity. The 
owner of the house was not the person who was doing the criminal 
activity, but it was allowed to go on there. The children, the spouse, 
people in the community were selling drugs out of that home. Finally 
that problem, which was right next to a church, was solved by using 
this civil asset forfeiture.
  There are frequently times that the criminal statutes do not allow us 
to fully sink our teeth into what some of these problems are. I believe 
that the main difference between the Hyde-Conyers bill and the 
Hutchinson-Weiner-Sweeney substitute are the burden of proof that we 
set. We do not make it a burden of proof that is so difficult that 
localities who are now making this argument will never be able to use 
civil asset forfeiture laws again.
  We make it a reasonable test. The Government still has to prove its 
case. They cannot seize their property and keep it wantonly. They are 
going to have a tough test. We are going to have provisions in the 
amendment that provide for counsel. But we also make sure that these 
forfeiture laws remain intact so we can continue to confiscate 
contraband, drugs, obscene matters, explosives, counterfeit money and 
seize the instrumentalities of crime, crack houses, handguns, and cash.
  We have to recognize that there are times that there is not the 
direct connection between the person and the criminal activity and the 
fact that we know with some certitude that that is an instrument of 
crime.
  The Hutchinson-Weiner amendment will allow us to get at the crime 
problem while dealing with many of the abuses that the gentleman from 
Illinois (Mr. Hyde) has correctly pointed out.
  Mr. HYDE. Mr. Chairman, I am pleased to yield 5 minutes to the 
distinguished gentleman from Georgia (Mr. Barr).
  Mr. BARR of Georgia. Mr. Chairman, I thank the distinguished 
gentleman from Illinois (Mr. Hyde) the chairman of the Committee on the 
Judiciary not only for his work in bringing this important piece of 
legislation to the floor today but over the course of many years for 
his championing the rights of our citizens both on the law enforcement 
side of the equation as well as on the civilian side.

[[Page H4861]]

  The chairman of the Committee on the Judiciary has been a tireless 
champion in support of our Constitution, all of our Constitution, in 
this regard.
  Mr. Chairman, when we look at asset forfeiture, we have to be struck 
by the fact that what was originally intended to be an extraordinary 
remedy to be used in only those most serious of criminal cases has 
become a commonplace tool of law enforcement. Unfortunately, Mr. 
Chairman, not only has it become a common tool of law enforcement, but 
in many jurisdictions, not all, but in far too many it has become the 
monetary tail wagging the law enforcement dog.
  Mr. Chairman, as more and more offenses over the last several years 
have been added to the predicates on which asset forfeiture seizures 
and forfeitures can take place, it becomes more and more incumbent on 
us to take a very close look, a comprehensive look, at exactly where we 
stand in America with regard to this awesome power the Government has.
  It is our responsibility, which we are exercising today under the 
leadership of the chairman of the Committee on the Judiciary, to bring 
back into focus this power the Government has that we all believe 
Government needs to have but to bring it back into proper focus. And 
that means balancing the important needs of law enforcement to strike 
at the criminal element where it really hurts, and that is in their 
pocketbook, but not with a blunderbuss, not to the extent that we also 
rope into that power the civil rights, the individual rights, the 
constitutional rights of law-abiding citizens.
  Many who are opposed for example, Mr. Chairman, say that the sky will 
fall if we dare reform asset forfeiture laws. That is not the case. I 
say that, Mr. Chairman, from the standpoint of both having been a 
United States Attorney and having exercised in the Northern District of 
Georgia the tremendous power of asset seizure and forfeiture, but also 
from the civilian side of the bar.
  Let us be perfectly clear, Mr. Chairman. H.R. 1658 does not and will 
not eviscerate asset forfeiture power. It reforms it. It does not kill 
it. We need also only to look, Mr. Chairman, to the experiences in 
recent years of some States which have grappled with the issue of 
reforming their own asset forfeiture laws to make them more mindful and 
reflective of individuals' rights to see that despite the naysayers and 
the Chicken Little sometimes running around saying the sky is going to 
fall if we dare reform this particular process, that in fact it has 
not.
  I would cite to our colleagues the case of California, which just a 
few years ago addressed the issue of asset forfeiture reform, changed 
the process, changed the burdens. Many in law enforcement in California 
were very concerned that, in fact, those changes to the laws where they 
shifted the burden and brought a little bit more balance to the process 
would eviscerate the ability of California law enforcement authorities 
and prosecutors to truly go after and seize legitimate criminal assets 
of the criminal element.
  In fact, Mr. Chairman, as over the last few years, that reform system 
in California has worked its way through the system, people have become 
used to it, the system has brought itself back into balance. Even the 
prosecutors, one of whom I spoke with just yesterday here in Washington 
who is currently still with the Attorney General's Office in 
California, says there has in fact been no precipitous drop-off, as a 
matter of fact, overall no drop-off in the ability and the amounts of 
seizures and forfeitures that have, in fact, taken place.

  When we look also, for example, Mr. Chairman, at the specifics of 
this legislation, as the distinguished gentleman from South Carolina 
(Mr. Graham) just got through talking about, if we look at what this 
legislation, that is H.R. 1658, does, it is fairness, it is the 
embodiment of fairness and constitutional due process.
  It places the burden where it ought to be, on the Government, to 
prove by clear and convincing evidence, which is a standard burden that 
is placed on the Government, in many cases on private parties, in many 
cases on States in many civil cases, to prove by substantial evidence 
that the property has in fact been used for the furtherance of criminal 
activity. It really is hard, Mr. Chairman, to imagine why anybody would 
object to that.
  As a matter of fact, the power of the Government, when they focus on 
the problem of asset forfeiture honestly in this way, they will 
recognize that this simply may create just a slight burden, a temporary 
burden, on law enforcement, but it will force them to pay closer 
attention to what they are doing.
  The gentleman from South Carolina (Mr. Graham) also properly noted 
several other specific aspects of this legislation that I believe lend 
itself to strong support for H.R. 1658 and against the substitute 
proposal, which does not reform the system in any meaningful way.
  Mr. Chairman, some who are opposed to civil asset forfeiture reform 
would have us believe the sky will fall if we dare reform these laws. 
As someone who has served on both sides of the bar, first as a federal 
prosecutor, and later as a private attorney, I can tell you this is 
simply not the case. But don't take my word for it. Let's get to 
specifics. What exactly does our legislation do? And, what doesn't it 
do?
  First, let's be perfectly clear, H.R. 1658 does not and will not 
eviscerate asset forfeiture power; it reforms, but it does not kill.
  Secondly, it addresses basic procedures, not underlying authority. 
For example, H.R. 1658 requires the government to prove by clear and 
convincing evidence that the property being seized has been used in 
criminal conduct. This goes back to a very basic principle: innocent 
until proven guilty. We should all be able to agree on that. Otherwise, 
we end up with justice according to the Queen in Alice in Wonderland, 
``[s]entence first--verdict afterwards.''
  Thirdly, our legislation would allow judges to release seized 
property, pending final adjudication, in order to prevent the property 
holder from suffering substantial hardship. This would allow judges, 
for example, to exercise their discretion to prevent a person who has 
not been convicted for any crime from losing their job because the 
police have seized the car they use to travel to work.
  Again, no sensible person can argue that our legal system will 
collapse if we trust judges to make this simple judgement call.
  Additionally, our legislation eliminates the requirement that an 
owner file a 10 percent cost bond in order to defend against the 
seizure of their property. Remember, under current law, if the 
government simply thinks you're guilty, it can take your property; and 
then, in addition, require you to post a bond simply for the privilege 
of walking into a courtroom and arguing your innocence. To make matters 
worse, the very fact that your assets have been seized, may very well 
make it impossible for you to post the bond. This kind of treatment is 
simply not acceptable in a country that purports to balance individual 
and property rights against necessary law enforcement powers.
  Finally, our reform legislation provides the owners of seized 
property with a reasonable time period within which to contest the 
seizure in court. Strict and very limited time limits in current law 
frequently slam the doors of justice shut before the target of a 
seizure even has a fair opportunity to pass through them into court.
  Those who oppose these common sense changes say the government cannot 
fight crime unless asset forfeiture laws remain dramatically tilted in 
its favor. However, as the 65,000 member Law Enforcement Alliance of 
America--which supports our legislation--knows, effective law 
enforcement depends ultimately on citizens having confidence in its 
fairness and honesty. Our current asset forfeiture laws undermine this 
confidence by treating some citizens unfairly, and sending others a 
message that our legal system is arbitrary, capricious, and motivated 
by profit rather than principle.
  Unfortunately, the substitute being offered today does not address 
the fundamental problems inherent in the current system. It does not 
level the playing field, and it does not improve the access to our 
legal system by innocent citizens whose property has been seized. The 
substitute resembles rejected legislation from the last Congress; a 
proposal that was opposed by groups as diverse as the National Rifle 
Association and the National Association of Criminal Defense Lawyers.
  Few, if any in this House, oppose law enforcement having the 
necessary and appropriate tools with which to fight crime; I certainly 
don't. One of these appropriate tools is asset forfeiture; but it must 
be fair and reasonable asset forfeiture; and it must not be allowed to 
be abused as some jurisdictions now do.
  In fact, our legislation preserves assets forfeiture, placing only 
very reasonable limits on its use; it restores the balance intended in 
the original legislation. This was done just a few years ago in 
California; where, despite

[[Page H4862]]

naysayers predicting the collapse of asset forfeitures, state 
prosecutors and law enforcement in fact adjusted to the new 
requirements and continued to seize and forfeit assets.
  A vote for the Civil Asset Forfeiture Act is a vote for returning to 
our law the basic principle that each of us is innocent until proven 
guilty. Remember, this Act in no way restricts the ability of law 
enforcement to seize the assets of someone who has been convicted of a 
crime under criminal asset forfeiture laws. It applies only to civil 
asset forfeiture provisions, which are used to seize property based not 
on a guilty verdict or plea--that is, proof beyond a reasonable doubt--
but on a much, much lower standard.
  Simply put, a vote for the substitute amendment is a vote to presume 
that an individual citizen is a criminal, and that the government can 
take their car, cash, or home simply because it harbors reasonable 
suspicious doubt. This is wrong. We all know it is wrong. Let's take 
this opportunity to change it.
  Mr. FRANK of Massachusetts. Mr. Chairman, I yield 5\1/2\ minutes to 
the gentlewoman from Texas (Ms. Jackson-Lee).
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished 
gentleman from Massachusetts for yielding me the time.
  Mr. Chairman, I come to this debate with a slightly different 
perspective, some that the Members may have coming from local 
government and being in the local government arena when the civil asset 
forfeiture law was, in fact, passed by this body.
  I have worked with a number of law enforcement agencies. I have 
worked with communities, particularly when many of our inner city 
communities, many of our rural communities suburban communities were 
under siege with the bad behavior, the bad actors of drug running, drug 
activity.
  I know neighborhoods in my community where crack took over in some of 
the older neighborhoods. Many times we would find senior citizens still 
living amongst houses that had been abandoned or the owner had left, or 
it was a rental property and the crack dealers or crack possessors, the 
crack sellers would take over.
  So some years ago, as this legislation was passed, it became a 
godsend for our local law enforcement, our sheriffs, our police 
departments, our constables to protect our neighborhoods. And at the 
same time, I remember, as a member of city council, those well-needed 
funds used appropriately added extra resources for clean parks and new 
equipment for our children.
  So I would like to at least acknowledge that we have had good uses, 
good intentions of this legislation. And I would hope that our law 
enforcement community would recognize, prosecutors included, that we 
are supportive of their efforts to still be able to use these tools to 
effectively fight crime.
  We do not want the crack dealers, cocaine dealers, any kind of 
dealers setting up and getting rich over these criminal activities. We 
do not want to see the elderly dispossessed from their neighborhoods. 
We do not want to see young families not able to allow their children 
to be out playing because these activities have been going on. We do 
not want the fraudulent activities of money laundering to result in the 
wealth of individuals while others are suffering.
  At the same time, I support the strategies of the Hyde-Conyers 
amendment because I think there have been a number of abuses that, 
keeping with the Constitution and property rights, we frankly should 
address. We should not be frightened to balance the needs of law 
enforcement along with the needs of citizens to protect their property 
rights.
  In particular, I think it is worth noting, as my colleague noted, 
there is some 80 percent of those who have had their property civilly 
taken because they are related to or they are thought to be associated 
with and have been found to be criminally associated with and have 
never been prosecuted. For that reason, I think we have a problem. This 
is a huge number, 80 percent.
  Who could that be? Spouses, sisters, brothers, relatives of any kind? 
Who could that be who have lost their property because they have been 
associated with someone who has done the wrong thing?
  I believe that this is a good balance to take law enforcement needs 
and consideration into account along with those who have suffered and 
lost property. I would hope that we would have an opportunity, however, 
Mr. Chairman, to look at some other aspects of concern that I have.
  I had a number of amendments. The substitute includes one of them. 
But I think, regardless of what happens to the substitute, we should 
have further discussion as to whether or not the clear and convincing 
evidence standard is the right balance for law enforcement versus the 
preponderance of evidence.
  I think we should also discuss, Mr. Chairman, the issue as to the 
district court of a claimant reviewing the district court of a claimant 
for substantial hardship to render decision on that hardship issue 
within 10 days. I am concerned that we would have a problem there.
  Mr. Chairman, I have another one on 10 days with respect to notice 
and another one with the Attorney General with respect to 30 days to a 
motion regarding the claimant's cause.
  Mr. HYDE. Mr. Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE of Texas. I yield to the gentleman from Illinois.
  Mr. HYDE. Mr. Chairman, I think the gentlewoman has raised some very 
significant issues worthy of study. And I pledge that, should this 
legislation pass and reach conference, that her concerns will be fully 
considered and debated and, hopefully, we can do something about them.
  Ms. JACKSON-LEE of Texas. Mr. Chairman, reclaiming my time, I 
appreciate the fact that we will be engaged in this issue, because it 
is a balance between property rights and law enforcement.
  The one point that I would like to end on, I certainly would like 
innocent individuals to know early who has their property if it has 
been seized and I would like to make sure that we bring that time frame 
down under the 60-day time frame.
  Mr. Chairman, I am in support of this bill which calls for civil 
assets forfeiture reform. Your leadership on this issue is to be 
commended. This is a good bipartisan bill which now shifts the burden 
of proof to the government to prove by clear and convincing evidence 
when seizing property and permits the appointment of counsel for 
indigent claimants while protecting innocent owners. I believe however 
in conference we might consider the burden of the government being a 
preponderance of the evidence.
  Unlike criminal forfeiture, civil forfeiture requires no due process 
before a property owner is required to surrender their property.
  Studies suggest that minorities are acutely affected by civil asset 
forfeitures. As we are well aware by now, racial profiling by the 
police has alarmingly increased the number of cases of minorities 
involved in traffic stops, airport searches and drug arrests. These 
cases afford the government, sometimes justifiably, with the 
opportunity to seize property. Since 1985, the Justice Department's 
asset forfeiture fund increased from $27 million to $338 million.
  Since a deprivation of liberty is not implicated in a civil 
forfeiture, the government is not bound by the constitutional 
safeguards of criminal prosecution. The government needs only show 
probable cause that the property is subject to forfeiture. The burden 
shifts to property owner to prove that the property is not subject to 
forfeiture.
  The property owner may exhaust his or her financial assets in 
attorney's fees to fight for the return of property. If the financial 
burden of attorney's fees is not crushing enough, the owner has to post 
a bond worth 10 percent of the value of the property, before contesting 
the forfeiture. Indigent owners are not entitled to legal counsel.
  Interestingly enough, persons charged in criminal cases are entitled 
to a hearing in court and the assistance of counsel. The government 
need not charge a property owner with a crime when seizing property 
under civil laws. The result is that an innocent person, or a person 
not charged with a crime, has fewer rights than the accused criminal. 
This anomaly must end.
  Reform of civil asset forfeiture laws is long overdue. I have several 
amendments regarding a sooner notice for property owners whose property 
as seized--I also hope we can present this in conference. My 
constituents' property rights must be protected.
  I urge you to support this bill to ensure that innocent owners are 
provided some measure of due process before their property is seized.

                              {time}  1500

  Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as 
I may consume.

[[Page H4863]]

  Mr. Chairman, the substitute seems to me to be based on one premise 
which I reject, that is, that having the government take your property 
but calling it civil somehow is different than if the government takes 
your property and says it is criminal. In either case, you lost the 
property. In either case, you are stigmatized. In either case, the 
reason for the loss of the property is that you are considered to have 
done something wrong.
  We have already conceded a great deal, it seems to me, in saying that 
the government, which must prove beyond a reasonable doubt to fine you 
criminally, need only meet the lesser standard of clear and convincing 
evidence to fine you civilly. But to go below that to the preponderance 
of the evidence is to engage the fiction, indulge the fiction that 
losing your home because someone did something wrong there, a member of 
your family, is somehow not as serious a penalty as being fined 
$10,000. We acknowledge the value of what you are losing through this 
procedure could far exceed what you might be hit with a criminal fine. 
Indeed, there is no proportionality here, so that you might lose much 
more through this civil procedure than through the criminal procedure. 
If, in fact, your property is taken, it is probably going to be known, 
so that the obloquy is there, so the question then is, does the legal 
fiction of calling this a civil asset forfeiture when it looks, smells, 
talks, acts and operates like a criminal penalty justify making it 
easier for the government to take it away from you, because that is 
what we are talking about.
  The government takes something away from you because you did 
something wrong. Or because somebody else did something wrong and you 
did not try hard enough to stop it, in the judgment of the government. 
Why should the government have a lower standard of proof in that 
situation than in another situation where the penalty might be less? 
While imprisonment obviously is more, criminal fines could be less than 
the amount of the civil forfeiture, but we make it easier for the 
government to do the one than the other for no good reason.
  I must say it has been my experience when I meet with people in this 
regard that when they ask to have this explained, they are incredulous 
that the government does this.
  I also want to say, I am a great supporter of law enforcement. In the 
substitute that the gentleman from Michigan put forward to the juvenile 
justice bill, there was a bill that I had cosponsored with some of my 
Massachusetts colleagues to renew the COPS program and to allow law 
enforcement to continue to pay cops who were originally federally paid. 
I want to provide more money for law enforcement, but I want to do that 
through the rational process of appropriations. The notion that we 
should give law enforcement differential incentives by saying that if 
they enforce this law they are direct financial beneficiaries but not 
if they enforce that law seems to me a terrible idea. We should not put 
our police officers on a bounty system. We ought to fund them better 
than we now fund them but through the regular process.
  I congratulate the gentleman from Illinois for the hard work he has 
done in bringing this forward. He has already, I think, been judicious 
in his compromises, and there is no reason to indulge the continuing 
legal fiction that suffering the penalty of the loss of your property 
through a civil asset forfeiture is somehow less damaging to you than 
losing it through a criminal conviction. In every real way, the impact 
is the same on the individual, and thus by dealing with a clear and 
convincing standard, we have already lowered the bar for government. To 
lower it further as this substitute requires is to lower too low the 
protections that a citizen ought to enjoy vis-a-vis the government.
  I hope that we will proceed to considering defeating the substitute 
and passing the legislation as proposed by the gentleman from Illinois.
  Mr. Chairman, I yield back the balance of my time.
  Mr. HYDE. Mr. Chairman, I yield 2 minutes to the gentleman from 
Arkansas (Mr. Hutchinson).
  Mr. HUTCHINSON. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  Clearly we are all supportive of reform. I think that that has been 
clear from the debate today. I want to respond to the gentleman from 
Massachusetts concerning the difference in standard of proof. If a 
student is sued to collect on a defaulted government loan, the 
government must prove it by a preponderance of the evidence. But if you 
go against a drug dealer, it has to be a much higher standard of proof, 
and I think that is unfair. If the government goes after a doctor or a 
hospital for overcharging on Medicare, you have a lower standard of 
proof than if you are going after a drug dealer. I think that is 
fundamentally unfair. And so I think there is a rational reason for 
keeping the standard of proof the same.
  There have been some complaints about the uses of the forfeiture 
money. Neither the base bill nor the substitute addresses whether it 
goes through the appropriation process. That is not addressed in these 
bills. But we have to acknowledge there have been some very beneficial 
uses, victims assistance programs, safety equipment for law enforcement 
officers, helping our local law enforcement communities. This would be 
severely undermined if we cannot go after the drug dealer's assets.
  In East St. Louis, Illinois, $350,000 was used of federally forfeited 
money for a water park that assisted a community. And then in regards 
to the appointment of counsel, I think there are certain instances in 
which that would be appropriate, but you have to have adequate 
safeguards.
  If you have a car transporting drugs from New York to Florida, there 
is an arrest made and there is $60,000 in there, you could have 
potentially four different people, from the person in New York to the 
recipient in Florida, to the individuals in the vehicle that would be 
claiming that money. Would they all be entitled to have appointed 
counsel? How much is this going to cost the taxpayers? And so I think 
that we are for reform.
  The gentleman from Illinois has done such an extraordinary job with 
the gentleman from Michigan and others. We are together on this. But I 
do believe that the substitute offers some improvements that will 
continue this as a useful tool for law enforcement. And so I think that 
we need to consider that as we move forward into the debate.
  Mr. HYDE. Mr. Chairman, I yield myself the balance of my time.
  The CHAIRMAN. The gentleman from Illinois is recognized for 4\1/2\ 
minutes.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Chairman, I want to thank my friends on both sides of 
the aisle for the enlightening debate on this issue and I would like to 
respond briefly to my friend from Arkansas. He keeps saying going after 
a drug dealer. When did he become a drug dealer? You have filed a 
probable cause. You have not convicted him of anything. But you have 
confiscated his property, you have put him out of business, you have 
put him out of house and home. You persist in calling him a drug 
dealer, but he has not been convicted of anything. He is innocent until 
proven guilty, unless we follow the perverse logic of our civil asset 
forfeiture laws.
  Now, we want to give some poor guy who has been wiped out by the 
government on probable cause a lawyer. You say, ``Okay, we'll give you 
a lawyer, but let the government cross-examine him first, extensively, 
about anything and everything.'' My God, then he does not need a 
lawyer. You have held him up to the light and shaken him. You have 
cross-examined him. Is that the hurdle he has to mount and surmount to 
get a lawyer? That is really not so.
  The preponderance of evidence is fine in a civil suit and the highest 
standard is beyond all reasonable doubt. We suggest a middle standard, 
clear and convincing. Why? Because it is not a civil suit. It is a 
quasi-criminal suit and it is punishment. The Supreme Court has said 
when they confiscate your property, that is punishment. And so you 
ought to meet a little higher standard than preponderance and that is 
the standard of clear and convincing.
  The gentleman's bill, his substitute, expands incrementally, 
exponentially the field of civil asset forfeiture. That may be a good 
idea, but not in this bill. This is a reform of the process. This is

[[Page H4864]]

not a bill to broaden the concept of civil asset forfeiture. I am 
interested in it. If he wants to prepare a bill and file it, I will 
give him very good hearings and quick hearings. But this bill is to 
reform the process and ought not to be diluted or diverted into issues 
over which we have had no hearings.
  Now, all I want to do is give the average citizen who is not a 
sheriff, who does not have a relative in the city council, I want to 
give him due process of law. That means the government, King Louis XIV, 
does not confiscate your property on probable cause. That is all. You 
prove, Mr. Government, that you ought to have that property, that some 
crime has been committed and it is connected to the defendant and that 
is fine. I am all for it. I will open the door for you. But on an 
affidavit of probable cause to inflict drastic punishment on somebody 
and make them prove they are not guilty is not, in my humble opinion, 
the American way.
  Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN. All time for general debate has expired.
  The amendment in the nature of a substitute consisting of the bill, 
modified by the amendments printed in the bill, shall be considered by 
sections as an original bill for the purpose of amendment and, pursuant 
to the rule, each section is considered read.
  Before consideration of any other amendment, it shall be in order to 
consider the amendment printed in House Report 106-193 if offered by 
the gentleman from Illinois (Mr. Hyde) or his designee. That amendment 
shall be considered read and may amend portions of the bill not yet 
read for amendment.
  No further amendment to the amendment in the nature of a substitute 
is in order except those printed in the appropriate portion of the 
Congressional Record. Those amendments shall be considered read.
  The Chairman of the Committee of the Whole may postpone a request for 
a recorded vote on any amendment and may reduce to a minimum of 5 
minutes the time for voting on any postponed question that immediately 
follows another vote, provided that the time for voting on the first 
question shall be a minimum of 15 minutes.
  It is now in order to consider the amendment printed in House Report 
106-193.


                     Amendment Offered by Mr. Hyde

  Mr. HYDE. Mr. Chairman, I offer an amendment made in order by the 
rule.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment offered by Mr. Hyde:
       Page 11, strike line 3 and all that follows through line 3 
     on page 12 and redesignate sections 4, 5, and 6 as sections 
     3, 4, and 5, respectively.
       Page 12, line 17, strike ``forfeiture'' and insert 
     ``forfeiture under any provision of Federal law (other than 
     the Tariff Act of 1930 or the Internal Revenue Code of 1986) 
     providing for the forfeiture of property other than as a 
     sentence imposed upon conviction of a criminal offense''.
       Page 13, beginning in line 20 strike ``under any Act of 
     Congress'' and insert ``under any provision of Federal law 
     (other than the Tariff Act of 1930 or the Internal Revenue 
     Code of 1986) providing for the forfeiture of property other 
     than as a sentence imposed upon conviction of a criminal 
     offense''.
       Page 13, line 25, strike ``pre-judgment interest'' and 
     insert ``for pre-judgment interest in a proceeding under any 
     provision of Federal law (other than the Tariff Act of 1930 
     or the Internal Revenue Code of 1986) providing for the 
     forfeiture of property other than as a sentence imposed upon 
     conviction of a criminal offense''.
       Page 14, line 17, strike ``any intangible benefits'' and 
     insert ``any intangible benefits in a proceeding under any 
     provision of Federal law (than the Tariff Act of 1930 or the 
     Internal Revenue Code of 1986) providing for the forfeiture 
     of property other than as a sentence imposed upon conviction 
     of a criminal offense''.

  Mr. HYDE. Mr. Chairman, it was always the intent to modify the 
procedures for Federal civil asset forfeitures. This is a purely 
technical amendment which clarifies in the few cases where the bill may 
be unclear that we are talking about civil asset forfeiture and not 
criminal asset forfeiture. I move its adoption.
  Mr. FRANK of Massachusetts. Mr. Chairman, I agree with the gentleman.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Illinois (Mr. Hyde).
  The amendment was agreed to.
  The CHAIRMAN. The Clerk will designate section 1.
  The text of section 1 is as follows:

       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 
     Reform Act''.
  The CHAIRMAN. Are there any amendments to section 1?


     Amendment No. 25 in the Nature of a Substitute Offered by Mr. 
                               Hutchinson

  Mr. HUTCHINSON. Mr. Chairman, I offer an amendment in the nature of a 
substitute.
  The CHAIRMAN. The Clerk will designate the amendment in the nature of 
a substitute.
  The text of the amendment in the nature of a substitute is as 
follows:

       Amendment No. 25 in the nature of a substitute offered by 
     Mr. Hutchinson:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Civil 
     Asset Forfeiture Reform Act''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title and table of contents.
Sec. 2. Creation of general rules relating to civil forfeiture 
              proceedings.
Sec. 3. Compensation for damage to seized property.
Sec. 4. Prejudgment and postjudgment interest.
Sec. 5. Applicability.

     SEC. 2. CREATION OF GENERAL RULES RELATING TO CIVIL 
                   FORFEITURE PROCEEDINGS.

       (a) In General.--Chapter 46 of title 18, United States 
     Code, is amended by inserting the following new section after 
     section 982:

     ``Sec. 983. Civil forfeiture procedures

       ``(a) Administrative Forfeitures.--(1)(A) In any 
     nonjudicial civil forfeiture proceeding under a civil 
     forfeiture statute, with respect to which the agency 
     conducting a seizure of property must send written notice of 
     the seizure under section 607(a) of the Tariff Act of 1930 
     (19 U.S.C. 1607(a)), such notice together with information on 
     the applicable procedures shall be sent not later than 60 
     days after the seizure to each party known to the seizing 
     agency at the time of the seizure to have an ownership or 
     possessory interest, including a lienholder's interest, in 
     the seized article. If a party's identity or interest is not 
     determined until after the seizure but is determined before a 
     declaration of forfeiture is entered, such written notice and 
     information shall be sent to such interested party not later 
     than 60 days after the seizing agency's determination of the 
     identity of the party or the party's interest.
       ``(B) If the Government does not provide notice of a 
     seizure of property in accordance with subparagraph (A), it 
     shall return the property pending the giving of such notice.
       ``(2) The Government may apply to a Federal magistrate 
     judge (as defined in the Federal Rules of Criminal Procedure) 
     in any district where venue for a forfeiture action would lie 
     under section 1355(b) of title 28 for an extension of time in 
     which to comply with paragraph (1)(A). Such an extension 
     shall be granted based on a showing of good cause.
       ``(3) A person with an ownership or possessory interest in 
     the seized article who failed to file a claim within the time 
     period prescribed in subsection (b) may, on motion made not 
     later than 2 years after the date of final publication of 
     notice of seizure of the property, move to set aside a 
     declaration of forfeiture entered pursuant to section 609 of 
     the Tariff Act of 1930 (19 U.S.C. 1609). Such motion shall be 
     granted if--
       ``(A) the Government failed to take reasonable steps to 
     provide the claimant with notice of the forfeiture; and
       ``(B) the person otherwise had no actual notice of the 
     seizure within sufficient time to enable the person to file a 
     timely claim under subsection (b).
       ``(4) If the court grants a motion made under paragraph 
     (3), it shall set aside the declaration of forfeiture as to 
     the moving party's interest pending forfeiture proceedings in 
     accordance with section 602 et seq. of the Tariff Act of 1930 
     (19 U.S.C. 1602 et seq.), which proceedings shall be 
     instituted within 60 days of the entry of the order granting 
     the motion.
       ``(5) If, at the time a motion under this subsection is 
     granted, the forfeited property has been disposed of by the 
     Government in accordance with law, the Government shall 
     institute forfeiture proceedings under paragraph (4). The 
     property which will be the subject of the forfeiture 
     proceedings instituted under paragraph (4) shall be a sum of 
     money equal to the value of the forfeited property at the 
     time it was disposed of plus interest.
       ``(6) The institution of forfeiture proceedings under 
     paragraph (4) shall not be barred by the expiration of the 
     statute of limitations under section 621 of the Tariff Act of 
     1930 (19 U.S.C. 1621) if the original publication of notice 
     was completed before the expiration of such limitations 
     period.
       ``(7) A motion made under this subsection shall be the 
     exclusive means of obtaining judicial review of a declaration 
     of forfeiture entered by a seizing agency.

[[Page H4865]]

       ``(b) Filing a Claim.--(1) Any person claiming such seized 
     property may file a claim with the appropriate official after 
     the seizure.
       ``(2) A claim under paragraph (1) may not be filed later 
     than 30 days after--
       ``(A) the date of final publication of notice of seizure; 
     or
       ``(B) in the case of a person receiving written notice, the 
     date that such notice is received.
       ``(3) The claim shall set forth the nature and extent of 
     the claimant's interest in the property.
       ``(4) Any person may bring a direct claim under subsection 
     (b) without posting bond with respect to the property which 
     is the subject of the claim.
       ``(c) Filing a Complaint.--(1) In cases where property has 
     been seized or restrained by the Government and a claim has 
     been filed, the Attorney General shall file a complaint for 
     forfeiture in the appropriate court in the manner set forth 
     in the Supplemental Rules for Certain Admiralty and Maritime 
     Claims not later than 90 days after the claim was filed, or 
     return the property pending the filing of a complaint. By 
     mutual agreement between the Government and the claimants, 
     the 90-day filing requirement may be waived.
       ``(2) The Government may apply to a Federal magistrate 
     judge (as defined in the Federal Rules of Criminal Procedure) 
     in any district where venue for a forfeiture action would lie 
     under section 1355(b) of title 28 for an extension of time in 
     which to comply with paragraph (1). Such an extension shall 
     be granted based on a showing of good cause.
       ``(3) Upon the filing of a civil complaint, the claimant 
     shall file a claim and answer in accordance with the 
     Supplemental Rules for Certain Admiralty and Maritime Claims.
       ``(d) Appointment of Counsel.--(1) If the person filing a 
     claim is financially unable to obtain representation by 
     counsel and requests that counsel be appointed, the court may 
     appoint counsel to represent that person with respect to the 
     claim. In determining whether to appoint counsel to represent 
     the person filing the claim, the court shall take into 
     account--
       ``(A) the nature and value of the property subject to 
     forfeiture, including the hardship to the claimant from the 
     loss of the property seized, compared to the expense of 
     appointing counsel;
       ``(B) the claimant's standing to contest the forfeiture; 
     and
       ``(C) whether the claim appears to be made in good faith or 
     to be frivolous.
       ``(2) The court shall set the compensation for that 
     representation, which shall be the equivalent to that 
     provided for court-appointed representation under section 
     3006A of this title, and to pay such cost, there are 
     authorized to be appropriated such sums as are necessary as 
     an addition to the funds otherwise appropriated for the 
     appointment of counsel under such section.
       ``(3) The determination of whether to appoint counsel under 
     this subsection shall be made following a hearing at which 
     the Government shall have an opportunity to present evidence 
     and examine the claimant. The testimony of the claimant at 
     such hearing shall not be admitted in any other proceeding 
     except in accordance with the rules which govern the 
     admissibility of testimony adduced in a hearing on a motion 
     to suppress evidence. Nothing in this paragraph shall be 
     construed to prohibit the admission of any evidence that may 
     be obtained in the course of civil discovery in the 
     forfeiture proceeding or through any other lawful 
     investigative means.
       ``(e) Burden of Proof.--In all suits or actions brought for 
     the civil forfeiture of any property, the burden of proof at 
     trial is on the United States to establish, by a 
     preponderance of the evidence, that the property is subject 
     to forfeiture. If the Government proves that the property is 
     subject to forfeiture, the claimant shall have the burden of 
     establishing any affirmative defense by a preponderance of 
     the evidence.
       ``(f) Innocent Owners.--(1) An innocent owner's interest in 
     property shall not be forfeited in any civil forfeiture 
     action.
       ``(2) With respect to a property interest in existence at 
     the time the illegal conduct giving rise to the forfeiture 
     took place, the term `innocent owner' means an owner who--
       ``(A) did not know of the conduct giving rise to the 
     forfeiture; or
       ``(B) upon learning of the conduct giving rise to the 
     forfeiture, did all that reasonably could be expected under 
     the circumstances to terminate such use of the property.
       ``(3)(A) With respect to a property interest acquired after 
     the conduct giving rise to the forfeiture has taken place, 
     the term `innocent owner' means a person who, at the time 
     that person acquired the interest in the property, was a bona 
     fide purchaser for value and was at the time of the purchase 
     reasonably without cause to believe that the property was 
     subject to forfeiture.
       ``(B) Except as provided in paragraph (4), where the 
     property subject to forfeiture is real property, and the 
     claimant uses the property as his or her primary residence 
     and is the spouse or minor child of the person who committed 
     the offense giving rise to the forfeiture, an otherwise valid 
     innocent owner claim shall not be denied on the ground that 
     the claimant acquired the interest in the property--
       ``(i) in the case of a spouse, through dissolution of 
     marriage or by operation of law, or
       ``(ii) in the case of a minor child, as an inheritance upon 
     the death of a parent,

     and not through a purchase. However, the claimant must 
     establish, in accordance with subparagraph (A), that at the 
     time of the acquisition of the property interest, the 
     claimant was reasonably without cause to believe that the 
     property was subject to forfeiture, and was an owner of the 
     property, as defined in paragraph (6).
       ``(4) Notwithstanding any provision of this section, no 
     person may assert an ownership interest under this section--
       ``(A) in contraband or other property that it is illegal to 
     possess; or
       ``(B) in the illegal proceeds of a criminal act unless such 
     person was a bona fide purchaser for value who was reasonably 
     without cause to believe that the property was subject to 
     forfeiture.
       ``(5) For the purposes of paragraph (2) of this subsection 
     a person does all that reasonably can be expected if the 
     person takes all steps that a reasonable person would take in 
     the circumstances to prevent or terminate the illegal use of 
     the person's property. There is a rebuttable presumption that 
     a property owner took all the steps that a reasonable person 
     would take if the property owner--
       ``(A) gave timely notice to an appropriate law enforcement 
     agency of information that led to the claimant to know the 
     conduct giving rise to a forfeiture would occur or has 
     occurred; and
       ``(B) in a timely fashion, revoked permission for those 
     engaging in such conduct to use the property or took 
     reasonable steps in consultation with a law enforcement 
     agency to discourage or prevent the illegal use of the 
     property.

     The person is not required to take extraordinary steps that 
     the person reasonably believes would be likely to subject the 
     person to physical danger.
       ``(6) As used in this subsection--
       ``(A) the term `civil forfeiture statute' means any 
     provision of Federal law (other than the Tariff Act of 1930 
     or the Internal Revenue Code of 1986) providing for the 
     forfeiture of property other than as a sentence imposed upon 
     conviction of a criminal offense.
       ``(B) the term `owner' means a person with an ownership 
     interest in the specific property sought to be forfeited, 
     including a lien, mortgage, recorded security device, or 
     valid assignment of an ownership interest. Such term does not 
     include--
       ``(i) a person with only a general unsecured interest in, 
     or claim against, the property or estate of another;
       ``(ii) a bailee unless the bailor is identified and the 
     bailee shows a colorable legitimate interest in the property 
     seized; or
       ``(iii) a nominee who exercises no dominion or control over 
     the property;
       ``(C) a person shall be considered to have known that the 
     person's property was being used or was likely to be used in 
     the commission of an illegal act if the person was willfully 
     blind.
       ``(7) If the court determines, in accordance with this 
     subsection, that an innocent owner had a partial interest in 
     property otherwise subject to forfeiture, or a joint tenancy 
     or tenancy by the entirety in such property, the court shall 
     enter an appropriate order--
       ``(A) severing the property;
       ``(B) transferring the property to the Government with a 
     provision that the Government compensate the innocent owner 
     to the extent of his or her ownership interest once a final 
     order of forfeiture has been entered and the property has 
     been reduced to liquid assets; or
       ``(C) permitting the innocent owner to retain the property 
     subject to a lien in favor of the Government, to the extent 
     of the forfeitable interest in the property, that will permit 
     the Government to realize its forfeitable interest if the 
     property is transferred to another person.

     To effectuate the purposes of this subsection, a joint 
     tenancy or tenancy by the entireties shall be converted to a 
     tenancy in common by order of the court, irrespective of 
     state law.
       ``(8) An innocent owner defense under this subsection is an 
     affirmative defense.
       ``(g) Motion To Suppress Seized Evidence.--At any time 
     after a claim and answer are filed in a judicial forfeiture 
     proceeding, a claimant with standing to contest the seizure 
     of the property may move to suppress the fruits of the 
     seizure in accordance with the normal rules regarding the 
     suppression of illegally seized evidence. If the claimant 
     prevails on such motion, the fruits of the seizure shall not 
     be admitted into evidence as to that claimant at the 
     forfeiture trial. However, a finding that evidence should be 
     suppressed shall not bar the forfeiture of the property based 
     on evidence obtained independently before or after the 
     seizure.
       ``(h) Use of Hearsay at Pre-Trial Hearings.--At any pre-
     trial hearing under this section in which the governing 
     standard is probable cause, the court may accept and consider 
     hearsay otherwise inadmissible under the Federal Rules of 
     Evidence.
       ``(i) Stipulations.--Notwithstanding the claimant's offer 
     to stipulate to the forfeitability of the property, the 
     Government shall be entitled to present evidence to the 
     finder of fact on that issue before the claimant presents any 
     evidence in support of any affirmative defense.
       ``(j) Preservation of Property Subject to Forfeiture.--The 
     court, before or after the filing of a forfeiture complaint 
     and on the application of the Government, may--

[[Page H4866]]

       ``(1) enter any restraining order or injunction in the 
     manner set forth in section 413(e) of the Controlled 
     Substances Act (21 U.S.C. 853(e));
       ``(2) require the execution of satisfactory performance 
     bonds;
       ``(3) create receiverships;
       ``(4) appoint conservators, custodians, appraisers, 
     accountants or trustees; or
       ``(5) take any other action to seize, secure, maintain, or 
     preserve the availability of property subject to forfeiture 
     under this section.
       ``(k) Excessive Fines.--(1) At the conclusion of the trial 
     and following the entry of a verdict of forfeiture, or upon 
     the entry of summary judgment for the Government as to the 
     forfeitability of the property, the claimant may petition the 
     court to determine whether the excessive fines clause of the 
     Eighth Amendment applies, and if so, whether forfeiture is 
     excessive. The claimant shall have the burden of establishing 
     that a forfeiture is excessive by a preponderance of the 
     evidence at a hearing conducted in the manner provided in 
     Rule 43(e), Federal Rules of Civil Procedure, by the Court 
     without a jury. If the court determines that the forfeiture 
     is excessive, it shall adjust the forfeiture to the extent 
     necessary to avoid the Constitutional violation.
       ``(2) The claimant may not object to the forfeiture on 
     Eighth Amendment grounds other than as set forth in paragraph 
     (1), except that a claimant may, at any time, file a motion 
     for summary judgment asserting that even if the property is 
     subject to forfeiture, the forfeiture would be excessive. The 
     court shall rule on such motion for summary judgment only 
     after the Government has had an opportunity--
       ``(A) to conduct full discovery on the Eighth Amendment 
     issue; and
       ``(B) to place such evidence as may be relevant to the 
     excessive fines determination before the court in affidavits 
     or at an evidentiary hearing.
       ``(l) Pre-Discovery Standard.--In a judicial proceeding on 
     the forfeiture of property, the Government shall not be 
     required to establish the forfeitability of the property 
     before the completion of discovery pursuant to the Federal 
     Rules of Civil Procedure, particularly Rule 56(f) as may be 
     ordered by the court or if no discovery is ordered before 
     trial.
       ``(m) Applicability.--The procedures set forth in this 
     section apply to any civil forfeiture action brought under 
     any provision of this title, the Controlled Substances Act, 
     or the Immigration and Naturalization Act.''.
       (b) Release of Property.--Chapter 46 of title 18, United 
     States Code, is amended to add the following section after 
     section 984:

     ``Sec. 985. Release of property to avoid hardship

       ``(a) A person who has filed a claim under section 983 is 
     entitled to release pursuant to subsection (b) of seized 
     property pending trial if--
       ``(1) the claimant has a possessory interest in the 
     property sufficient to establish standing to contest 
     forfeiture and has filed a nonfrivolous claim on the merits 
     of the forfeiture action;
       ``(2) the claimant has sufficient ties to the community to 
     provide assurance that the property will be available at the 
     time of the trial;
       ``(3) the continued possession by the United States 
     Government pending the final disposition of forfeiture 
     proceedings will cause substantial hardship to the claimant, 
     such as preventing the claimant from working, leaving the 
     claimant homeless, or preventing the functioning of a 
     business;
       ``(4) the claimant's hardship outweighs the risk that the 
     property will be destroyed, damaged, lost, concealed, 
     diminished in value or transferred if it is returned to the 
     claimant during the pendency of the proceeding; and
       ``(5) none of the conditions set forth in subsection (c) 
     applies;
       ``(b)(1) The claimant may make a request for the release of 
     property under this subsection at any time after the claim is 
     filed. If, at the time the request is made, the seizing 
     agency has not yet referred the claim to a United States 
     Attorney pursuant to section 608 of the Tariff Act of 1930 
     (19 U.S.C. 1608), the request may be filed with the seizing 
     agency; otherwise the request must be filed with the United 
     States Attorney to whom the claim was referred. In either 
     case, the request must set forth the basis on which the 
     requirements of subsection (a)(1) are met.
       ``(2) If the seizing agency, or the United States Attorney, 
     as the case may be, denies the request or fails to act on the 
     request within 20 days, the claimant may file the request as 
     a motion for the return of seized property in the district 
     court for the district represented by the United States 
     Attorney to whom the claim was referred, or if the claim has 
     not yet been referred, in the district court that issued the 
     seizure warrant for the property, or if no warrant was 
     issued, in any district court that would have jurisdiction to 
     consider a motion for the return of seized property under 
     Rule 41(e), Federal Rules of Criminal Procedure. The motion 
     must set forth the basis on which the requirements of 
     subsection (a) have been met and the steps the claimant has 
     taken to secure the release of the property from the 
     appropriate official.
       ``(3) The district court must act on a motion made pursuant 
     to this subsection within 30 days or as soon thereafter as 
     practicable, and must grant the motion if the claimant 
     establishes that the requirements of subsection (a) have been 
     met. If the court grants the motion, the court must enter any 
     order necessary to ensure that the value of the property is 
     maintained while the forfeiture action is pending, including 
     permitting the inspection, photographing and inventory of the 
     property, and the court may take action in accordance with 
     Rule E of the Supplemental Rules for Certain Admiralty and 
     Maritime Cases. The Government is authorized to place a lien 
     against the property or to file a lis pendens to ensure that 
     it is not transferred to another person.
       ``(4) If property returned to the claimant under this 
     section is lost, stolen, or diminished in value, any 
     insurance proceeds shall be paid to the United States and 
     such proceeds shall be subject to forfeiture in place of the 
     property originally seized.
       ``(c) This section shall not apply if the seized property--
       ``(1) is contraband, currency or other monetary instrument, 
     or electronic funds unless such currency or other monetary 
     instrument or electronic funds constitutes the assets of a 
     business which has been seized,
       ``(2) is evidence of a violation of the law,
       ``(3) by reason of design or other characteristic, is 
     particularly suited for use in illegal activities; or
       ``(4) is likely to be used to commit additional criminal 
     acts if returned to the claimant.''
       ``(d) Once a motion for the release of property under this 
     section is filed, the person filing the motion may request 
     that the motion be transferred to another district where 
     venue for the forfeiture action would lie under section 
     1355(b) of title 28 pursuant to the change of venue 
     provisions in section 1404 of title 28.''.
       (c) Chapter Analysis.--The chapter analysis for chapter 46 
     of title 18, United States Code, is amended--
       (1) by inserting after the item relating to section 982 the 
     following:

``983. Civil forfeiture procedures''; and

       (2) by inserting after the item relating to section 984 the 
     following:

``985. Release of property to avoid hardship''.

       (f) Civil Forfeiture of Proceeds.--Section 981(a)(1) of 
     title 18, United States Code, is amended--
       (1) in subparagraph (C) by inserting before the period the 
     following: ``or any offense constituting `specified unlawful 
     activity' as defined in section 1956(c)(7) of this title or a 
     conspiracy to commit such offense''; and
       (2) by striking subparagraph (E).
       (d) Uniform Definition of Proceeds.--Section 981(a) of 
     title 18, United States Code, as amended by subsection (c), 
     is amended--
       (A) in paragraph (1), by striking ``gross receipts'' and 
     ``gross proceeds'' wherever those terms appear and inserting 
     ``proceeds''; and
       (B) by adding the following after paragraph (1):
       ``(2) For purposes of paragraph (1), the term `proceeds' 
     means property of any kind obtained, directly or indirectly, 
     as the result of the commission of the offense giving rise to 
     forfeiture, and any property traceable thereto, and is not 
     limited to the net gain or profit realized from the 
     commission of the offense. In a case involving the forfeiture 
     of proceeds of a fraud or false claim under paragraph (1)(C) 
     involving billing for goods or services part of which are 
     legitimate and part of which are not legitimate, the court 
     shall allow the claimant a deduction from the forfeiture for 
     the amount obtained in exchange for the legitimate goods or 
     services. In a case involving goods or services provided by a 
     health care provider, such goods or services are not 
     `legitimate' if they were unnecessary.
       ``(3) For purposes of the provisions of subparagraphs (B) 
     through (H) of paragraph (1) which provide for the forfeiture 
     of proceeds of an offense or property traceable thereto, 
     where the proceeds have been commingled with or invested in 
     real or personal property, only the portion of such property 
     derived from the proceeds shall be regarded as property 
     traceable to the forfeitable proceeds. Where the proceeds of 
     the offense have been invested in real or personal property 
     that has appreciated in value, whether the relationship of 
     the property to the proceeds is too attenuated to support the 
     forfeiture of such property shall be determined in accordance 
     with the excessive fines clause of the Eighth Amendment.''

     SEC. 3. COMPENSATION FOR DAMAGE TO SEIZED PROPERTY.

       (a) Tort Claims Act.--Section 2680(c) of title 28, United 
     States Code, is amended--
       (1) by striking ``law-enforcement'' and inserting ``law 
     enforcement''; and
       (2) by inserting before the period the following: ``, 
     except that the provisions of this chapter and section 
     1346(b) of this title do apply to any claim based on the 
     destruction, injury, or loss of goods, merchandise, or other 
     property, while in the possession of any officer of customs 
     or excise or any other law enforcement officer, if the 
     property was seized for the purpose of forfeiture under any 
     provision of Federal law (other than the Tariff Act of 1930 
     or the Internal Revenue Code of 1986) providing for the 
     forfeiture of property other than as a sentence imposed upon 
     conviction of a criminal offense but the interest of the 
     claimant is not forfeited.
       (b) Department of Justice.--
       (1) In general.--With respect to a claim that cannot be 
     settled under chapter 171 of title 28, United States Code, 
     the Attorney General may settle, for not more than $50,000 in 
     any case, a claim for damage to, or loss of,

[[Page H4867]]

     privately owned property caused by an investigative or law 
     enforcement officer (as defined in section 2680(h) of title 
     28, United States Code) who is employed by the Department of 
     Justice acting within the scope of his or her employment.
       (2) Limitations.--The Attorney General may not pay a claim 
     under paragraph (1) that--
       (A) is presented to the Attorney General more than 1 year 
     after it occurs; or
       (B) is presented by an officer or employee of the United 
     States Government and arose within the scope of employment.

     SEC. 4. PREJUDGMENT AND POSTJUDGMENT INTEREST.

       Section 2465 of title 28, United States Code, is amended--
       (1) by inserting ``(a)'' before ``Upon''; and
       (2) adding at the end the following:
       ``(b) Interest.--
       ``(1) Post-judgment.--Upon entry of judgment for the 
     claimant in any proceeding to condemn or forfeit property 
     seized or arrested under any provision of Federal law (other 
     than the Tariff Act of 1930 or the Internal Revenue Code of 
     1986) providing for the forfeiture of property other than as 
     a sentence imposed upon conviction of a criminal offense, the 
     United States shall be liable for post-judgment interest as 
     set forth in section 1961 of this title.
       ``(2) Pre-judgment.--The United States shall not be liable 
     for prejudgment interest in a proceeding under any provision 
     of Federal law (other than the Tariff Act of 1930 or the 
     Internal Revenue Code of 1986) providing for the forfeiture 
     of property other than as a sentence imposed upon conviction 
     of a criminal offense, except that in cases involving 
     currency, other negotiable instruments, or the proceeds of an 
     interlocutory sale, the United States shall disgorge to the 
     claimant any funds representing--
       ``(A) interest actually paid to the United States from the 
     date of seizure or arrest of the property that resulted from 
     the investment of the property in an interest-bearing account 
     or instrument; and
       ``(B) for any period during which no interest is actually 
     paid, an imputed amount of interest that such currency, 
     instruments, or proceeds would have earned at the rate 
     described in section 1961.
       ``(3) Limitation on other payments.--The United States 
     shall not be required to disgorge the value of any intangible 
     benefits nor make any other payments to the claimant not 
     specifically authorized by this subsection.''.

     SEC. 5. APPLICABILITY.

       Unless otherwise specified in this Act, the amendments made 
     by this Act apply with respect to claims, suits, and actions 
     filed on or after the date of the enactment of this Act.
  Mr. HUTCHINSON. Mr. Chairman, it was Ronald Reagan who understood how 
to fight and win the war on drugs. It was President Reagan who knew 
that you had to seize the drug dealers' cars, boats, airplanes and cash 
that were used to carry on the drug business in order to hit them where 
it hurts.
  Asset forfeiture has proven without any doubt to be an effective 
weapon in the war on drugs. This is not the time to disarm our soldiers 
and to demoralize our police on the front line and it is certainly not 
the right time to send the signal to the drug dealers that we are 
weakening our resolve.
  For that reason, I, along with the gentleman from New York (Mr. 
Weiner) and the gentleman from New York (Mr. Sweeney) have offered a 
substitute to H.R. 1658 which would accomplish the reform that the 
gentleman from Illinois has worked so valiantly for but at the same 
time our substitute will not cripple our drug enforcement agents who 
put their lives on the line every day.
  I agree that no innocent citizen should have to prove his or her 
innocence to the government in order to protect their property from 
government seizure. It should not be probable cause as the gentleman 
from Illinois pointed out. This substitute includes the identical 
provisions in the base bill on shifting the burden of proof to the 
government, eliminating the necessity of a cost bond, providing a means 
to recovery for citizens who have their property damaged, and it pays 
interest on assets returned. We can all be for protection of our 
citizens and for reform while also going after the drug dealers. And so 
there are some corrections in the substitute that provides balance to 
this legislation.
  For example, the drug trafficker who unloads shiploads of cocaine 
upon our Nation's youth should not be afforded more protection than a 
student who defaults on his loan. The government has to prove the case 
by a preponderance against the student, but there is a higher standard 
when going after the assets of drug dealers by clear and convincing 
evidence.

                              {time}  1515

  Now, as pointed out, that we do not know they are a drug dealer. 
Eighty percent of the cases there is an arrest or a charge against the 
individual. But in some instances we will have assets are abandoned by 
people who are clearly engaging in drug trafficking, but they will go 
across the border. We will have someone who is not prosecutable because 
we do not have good extradition laws, and so we can still seize their 
assets under those circumstances. This makes sense, and the substitute 
corrects the problem.
  Now, if there was a medal of honor to be given to someone in the war 
on drugs, it would be to Tom Constantine, the DEA Administrator. Listen 
to what he has to say:

       Drug trafficking is not a crime of passion, but one of 
     greed. The DEA and the law enforcement community know that to 
     dissolve a drug trafficking organization we must eliminate 
     the financial base and profit. The enactment of H.R. 1658 
     would severely limit DEA's ability to use its effective law 
     enforcement tool.

  He goes on to say that the broad brush of H.R. 1658 would destroy or 
severely limit the ability of law enforcement to attack drug 
traffickers and other criminal elements.
  This is the DEA Administrator.
  I think we have to be consistent here in this Congress. How does 
disarming law enforcement fit into the war on drugs? We push other 
countries to adopt laws that allow seizure of assets; we push them to 
do that, and then we back off from our own commitment to take drug 
dealers' assets. We form a Speaker's Task Force for a Drug-free 
America. We want to de-certify Mexico. We get upset about the lack of 
commitment from other countries. Then we throw up our hands and say 
that we want to overreact and back off from our support of law 
enforcement.
  We need to ask ourselves how can we weaken the forfeiture laws to 
such an extent that we discourage law enforcement. We are telling them 
that we do not have the resolve. We are telling the DEA that we are not 
going to help them. We cannot demoralize the courageous law enforcement 
men and women who are trying to save the lives of our teenagers and the 
next generation.
  The bill of the gentleman from Illinois (Mr. Hyde) does extraordinary 
good to what we are trying to accomplish in making sure citizens are 
protected, but the reasonable Hutchinson-Weiner-Sweeney amendment makes 
it a balance so that we do not hamper the legitimate efforts of law 
enforcement.
  So I would ask my colleagues to support this substitute that is 
offered that would bring reason to the appointment of attorneys, that 
would make sure that it is not simply retroactive in application, it 
does not affect pending cases, as the base bill does. Our bill would 
say it would apply after the date of enactment. It is much a more 
commonsense approach to the enactment of a bill. Whenever it comes to 
the hardship cases, we make it clear that there is a difference between 
the cash and those things that are used for drug crimes during the 
pendency of an action versus otherwise, and so I ask my colleagues to 
support this reasonable substitute.
  Mr. WEINER. Mr. Chairman, I rise in support of the Hutchinson 
amendment.
  Mr. Chairman, the gentleman from Arkansas (Mr. Hutchinson) has 
outlined for us in great detail how we are simply seeking to make the 
civil asset forfeiture law, make it a little bit more fair and to make 
it so it can be used by law enforcement authorities. But there has been 
some argument here about whether or not we should have civil asset 
forfeiture at all, and I would like to spend a moment or two just 
reviewing some of the circumstances that perhaps my colleagues have not 
considered where civil asset forfeiture is the only way to really get 
at the root of crime, and it is the reason why we have had such great 
results against crime in many localities around the country.
  First of all, criminal forfeiture, which is something that my 
colleague from Massachusetts has argued in support of, and frankly I 
believe we all believe that criminal forfeiture where it is written 
into the law is the most important tool that should be used against a 
criminal is useless if the criminal is either dead or fugitive from the 
law. If someone leaves the scene of a crime, if we are in pursuit of 
them and they leave behind a sack of money and drugs, under the 
argument that has been made here we would not be able to seize that 
unless, of course, we

[[Page H4868]]

are able to reach a much higher standard than presently exists.
  Secondly, criminal forfeiture is limited to the property of the 
defendant, and just as I said earlier, there are very frequently times, 
especially in the locality that I am from in New York City where we 
have homes, where we have apartments, where we have houses that are 
used for illegal activity and sometimes even used for illegal activity 
with the knowledge of the occupant. But since the occupant or the owner 
is not the person that does that criminal activity, civil asset 
forfeiture is frequently the only way that we can get it. If an 
airplane that is used for drug smuggling, for example, belongs to the 
wife of the defendant or belongs to a corporation or to his partner, 
this is a way that we can get at that article of crime.
  Also, civil forfeiture is the only way to seize drug money that is 
carried by a courier when there is no way to know exactly which drug 
dealer it belongs to. Eighty-five percent of such civil forfeiture 
cases are uncontested. Without civil forfeiture this money would have 
to be released to the courier.
  Again civil forfeiture is the only way to shut down a crack house or 
a property. Civil forfeiture is needed when we do not, we are not, when 
we are seizing something under federal law when the crime has happened 
under State law.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. WEINER. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. He said, and I thank the gentleman for 
yielding; he said that some of the 85 percent of them were uncontested. 
Is the gentleman telling us that one could not meet the standard of 
clear and convincing in an uncontested case?
  Mr. WEINER. If I can reclaim my time, what I am arguing to the 
gentleman from Massachusetts is that there are some people who have 
looked on and listened to the debate and said why is it that we should 
have civil forfeiture statutes at all? Why is it necessary that they 
exist in the law?
  The gentleman from Illinois, the distinguished chairman, raised a 
very interesting question about whether it is indeed an un-American 
thing to do, and what I am trying to do is lay out the ways in the real 
world law enforcement authorities all across this country who from A to 
Z have lined up in favor of the Hutchinson-Weiner-Sweeney amendment are 
using it.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield 
again?
  Mr. WEINER. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. I understand, but the amendment is to a 
bill which leaves civil forfeiture in place, and the gentleman just 
cited as an argument for the amendment, presumably, that many, many of 
these are uncontested.
  Now the underlying bill says they just have to meet the clear and 
convincing standard, and I am arguing that in an uncontested case one 
does not have to be a crack lawyer to meet the standard of clear and 
convincing, so that is an irrelevancy on the question of the amendment 
versus the underlying bill.
  Mr. WEINER. As I reclaim my time, I guess I understand from that 
question and that argument that the gentleman from Massachusetts 
supports civil forfeiture in those cases.
  Mr. FRANK of Massachusetts. If the gentleman would yield, I 
congratulate the gentleman on getting me to acknowledge what has been 
my policy for years and what is the Chairman's policy. The gentleman is 
flailing away at a straw man. I do not see anything on here that 
totally abolishes civil forfeiture anywhere.
  Mr. WEINER. In fact, I would say to the gentleman from Massachusetts, 
the straw man here is the argument that these abuses represent the true 
state of civil forfeiture law in this country. In fact, these things 
that I am listing are how indeed law enforcement authorities every day 
are using the civil forfeiture statute. The abuses that exist, and they 
do, they represent the straw man in this debate because indeed we all 
want to do away with the abuses.
  The question becomes do we then say by doing away with these abuses 
do we obviate all civil forfeiture statutes? The gentleman from 
Illinois, the very distinguished chairman, argued on the well of this 
House that it was un-American in some way, and all I am trying to 
delineate for the American people and for the folks in this Chamber; 
the fundamental argument has emerged: Should we have civil forfeiture, 
and I believe we should.
  Mr. HYDE. Mr. Chairman, I move to strike the last word.
  As my colleagues know, we a have a lot of fevered debate around here 
by well-meaning people, and that is fine, that is what this place is 
all about. So I just want to say a few things about the amendment 
offered by my good friend, the gentleman from Arkansas (Mr. 
Hutchinson), the gentleman from New York (Mr. Sweeney), and the 
gentleman from New York (Mr. Weiner). It is so unfair, it is unfair.
  Mr. Chairman, I will tell my colleagues why it is unfair. The bill, 
the underlying bill, guarantees a property owner is considered an 
innocent owner and receives protection from forfeiture if he or she 
notifies the police of the unauthorized illegal use of his or her 
property by others and revokes their permission to use the property. 
That is the innocent owner defense. Is that fair? Well, I think it is, 
but it is not in their bill. They do not permit an innocent owner who 
has gone to the police and said, ``Some of my tenants are selling dope, 
and I have tried to evict them, and they threw a knife at me.'' Well, 
he loses his building because they do not have an innocent owner 
defense in their substitute.
  Now, they do not protect innocent heirs. Somebody inherits something, 
and 10 years ago it was used in a crime, he does not know about it, 
totally innocent; he loses his property. I know the police like that; 
they like those assets. I understand that. The substitute does not 
require the government to establish the forfeitability of the property 
before completion of discovery. As the gentleman from Michigan (Mr. 
Conyers) said, seize now and prove later. That is a wonderful idea; 
that is very fair.
  The substitute dramatically expands the field of civil asset 
forfeiture; no hearings on that at all. It weakens almost all of our 
reforms. The burden of proof belongs with the government when they are 
punishing someone, and this is punishment. It has been held to be 
punishment, quasi criminal, and therefore their standard ought to be, 
ought to be, clear and convincing.
  Now, Mr. Constantine had an interesting quote there, and I have 
nothing but admiration for people who are fighting the drug battle, but 
I did not hear a peep out of those people while all of these abuses 
were going on, while people had their property confiscated on probable 
cause. I would think more of their essential fairness had they brought 
this to our attention and not some newspaper man.
  Mr. WEINER. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from New York.
  Mr. WEINER. Mr. Chairman, first of all just a point of correction on 
a couple of points.
  We do indeed have an innocent owner defense in the Sweeney-
Hutchinson-Weiner substitute, and as to the point that there were not 
hearings on the bill, this virtually identical bill passed by 26 to 1 
last year in the Committee on the Judiciary of this House.
  Mr. HYDE. Mr. Chairman, I did not hear the gentleman.
  Mr. WEINER. Our substitute passed 26 to 1 last year in the Committee 
on the Judiciary of this House.
  Mr. HYDE. Last year I tried to compromise with the Justice 
Department. I bent over backwards trying to accommodate everybody, and 
the more their bill grew and was distorted into areas where I did not 
want it to go, I lost support, and finally I had a nice shell of 
nothing. So I decided to get pure and go back to the original bill, and 
that is what we are doing.
  Mr. WEINER. I just want a clarification on the notion that there was 
no hearings because indeed there were.
  Mr. HYDE. There were no hearings on the burden of proof and things 
like that, and the gentleman from New York was not here.
  Mrs. MEEK of Florida. Mr. Chairman, I move to strike the requisite 
number of words.
  Mr. Chairman, I have an amendment at the desk.
  The CHAIRMAN. The gentlewoman's amendment can be considered during a 
later section in the bill.
  Mrs. MEEK of Florida. That is true, but I amended both of them. I 
amended

[[Page H4869]]

this particular bill as well as the later bill.


                         Parliamentary Inquiry

  Mr. FRANK of Massachusetts. Parliamentary inquiry, Mr. Chairman.
  The CHAIRMAN. The gentleman will state his parliamentary inquiry.
  Mr. FRANK of Massachusetts. Mr. Chairman, if there were to be 
unanimous consent for it to be offered now since it might not get too 
far along, would that be in order, to ask for unanimous consent that 
the gentlewoman be allowed to offer it now?
  The CHAIRMAN. Does the gentlewoman from Florida have an amendment to 
this amendment?
  Mrs. MEEK of Florida. Yes, I do.
  The CHAIRMAN. Would she present it to the Clerk?
  Mrs. MEEK of Florida. Yes, it has been presented, and it is 
preprinted in the Congressional Record.

                              {time}  1530


   Amendment Offered by Mrs. Meek of Florida to the Amendment in the 
            Nature of a Substitute Offered by Mr. Hutchinson

  Mrs. MEEK of Florida. Mr. Chairman, I offer an amendment to the 
amendment in the nature of a substitute.
  The Clerk read as follows:

       1Amendment offered by Mrs. Meek of Florida to the amendment 
     in the nature of a substitute offered by Mr. Hutchinson:
       At the end add the following:

     SEC. 5. FORFEITURE FOR ALIEN SMUGGLING.

       Section 981(a)(1) of title 18, United States Code, is 
     amended by adding at the end the following:
       ``(l)(1) Any conveyance, including any vessel, vehicle, or 
     aircraft which has been used or is being used in commission 
     of a violation of section 274(a) of the Immigration and 
     Nationality Act (8 U.S.C. 1324(a)); and
       ``(2) Any property, real or personal that--
       ``(A) constitutes, is derived from, or is traceable to the 
     proceeds obtained, directly or indirectly, from the 
     commission of a violation of section 274(a) of the 
     Immigration and Nationality Act (8 U.S.C. 1324(a)); or
       ``(B) is used to facilitate, or is intended to be used to 
     facilitate, the commission of a violation of such section.

  Mrs. MEEK of Florida (during the reading). Mr. Chairman, I ask 
unanimous consent that the amendment be considered as read and printed 
in the Record.
  The CHAIRMAN. Is there objection to the request of the gentlewoman 
from Florida?
  There was no objection.
  Mrs. MEEK of Florida. Mr. Chairman, my amendment addresses the 
pernicious practice of alien smuggling which is so often experienced in 
my area of south Florida. It is a huge problem there, especially those 
who bring passengers in from Haiti and Cuba to south Florida, 
frequently on unsafe and rickety boats, and many times under dangerous 
conditions, and many times with the loss of life.
  For example, in March of this year, Mr. Chairman, an alien smuggler's 
boat sank off the coast of West Palm Beach, Florida, and depending upon 
whether or not the Coast Guard or press reports of this horrendous 
tragedy, whether those reports are correct, there were some 15 to 40 
Haitian passengers who drowned because of that illegal smuggling act of 
bringing these poor and disadvantaged people from Haiti.
  These heartless and inhumane alien smugglers are really parasites. 
They are making huge sums of money from these poor people who are 
fleeing from very bad conditions in their own countries. They seek to 
come to this country by any means because of their desperate condition, 
and they become easy prey for the smugglers, and they want to come to 
the United States.
  We must provide law enforcement with some available remedies to 
assure that the smugglers cannot continue to exploit vulnerable 
communities such as the Haitians and the Cubans. Unfortunately, the 
existing civil asset forfeiture provisions for alien smuggling, they 
are far more limited than those available to address drug offenses, and 
there is a considerable need here for stronger, stricter regulations on 
these alien smugglers.
  Current law authorizes the forfeiture of vehicles, vessels, and 
aircraft used to commit alien smuggling offenses. This has proven to be 
a very good law enforcement tool that the INS uses more than 12,000 
times a year. But the law itself has some very glaring loopholes. We 
know that there are other types of property other than vessels and 
vehicles and aircraft that will facilitate the kind of illegal stuff 
that the smugglers are doing. But this type of property right now is 
not subject to civil asset forfeiture.
  To give just one example of that, alien smugglers use electronic gear 
to monitor law enforcement activity directed against alien smuggling. 
The smugglers also use very large and well-equipped warehouses where 
vehicles, vessels and even human beings, many times, are stashed to 
avoid detection by the Coast Guard or the Border Patrol. Yet these 
other types of property currently are not subject to civil asset 
forfeiture.
  Suffice it to say, Mr. Chairman, that there is an arena where current 
laws do not cover what is going on with these people who are dealing in 
human cargo. So my amendment seeks to correct these deficiencies by 
expanding the scope of permissible civil asset forfeiture in alien 
smuggling.
  Law enforcement should have the ability to reach any property that is 
owned by the smugglers. Right now they do not. There is no logical 
reason why they cannot.
  I thank the distinguished chairman, and I thank the people who are 
offering this substitute amendment, Mr. Chairman, for expressing their 
willingness to address this major problem that I have brought up 
between now and conference.
  Mr. Chairman, based upon their statements and upon my understanding 
of what they have said, that they will address this later, I ask 
unanimous consent to withdraw my amendment.
  The CHAIRMAN. Is there objection to the request of the gentlewoman 
from Florida?
  There was no objection.
  Mr. GILMAN. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. GILMAN asked and was given permission to revise and extend his 
remarks.)
  Mr. GILMAN. Mr. Chairman, I rise in support of the substitute 
presently before us, and I urge my colleagues to support it as well. It 
is a carefully drawn proposal with the input of the Department of 
Justice and the law enforcement community. It, too, has an innocent 
owner defense. It also works to make certain that the defense will not 
be used by any criminals to shield their property.
  The underlying Hyde bill is opposed by the DEA, the International 
Association of Chiefs of Police, by the New York State Police, the New 
York attorneys general, the New York State District Attorneys 
Association, the National Sheriffs Association, the Fraternal Order of 
Police, the national drug enforcement officers, among just a few in our 
law enforcement community. These are the frontline forces in our fight 
against illicit drugs and crime. We should heed their sound advice and 
be wary of anything that can make their already difficult job any 
harder.
  Our superintendent of the New York State Police, an outstanding and 
dedicated police officer, and who once served in my district, put this 
whole debate in proper perspective when he wrote me on June 18 stating, 
and I quote, we are aware of no instance since the inception of the 
Federal equitable forfeiture sharing program of any case involving this 
agency whereby a hardship was endured by any innocent owner, close 
quote.
  Let us not throw out the baby with the bath water while we try to 
reform asset forfeiture. Accordingly, I urge a vote for the Hutchinson-
Weiner-Sweeney substitute. I think it is a well-crafted and well-
thought-out compromise that was developed last year with the input of 
those who have been fighting the scourge of drugs and crime each and 
every day all across our Nation.
  Mr. Chairman, I insert the following correspondence for the Record:
                                                State of New York,


                                            Executive Chamber,

                                      New York, NY, June 23, 1999.
     Hon. Benjamin A. Gilman,
     U.S. House of Representatives, Rayburn Office Building, 
         Washington, DC.
       Dear Congressman Gilman: I take this opportunity to express 
     New York State's concern with regard to H.R. 1658 which is 
     imminently scheduled to come before the full House of 
     Representatives for vote. Passage of H.R. 1658 will seriously 
     impair law enforcement's ability to seize assets of criminal 
     enterprises. As such, when Congressman Hyde offers H.R. 1658 
     to address criminal asset forfeitures, I strongly urge 
     members to support the substitute amendment being offered by 
     Congressman Sweeney, Weiner and Hutchinson.

[[Page H4870]]

       One of the most potent weapons in our efforts to combat 
     illegal drugs and other organized criminal activity has been 
     comprehensive Federal forfeiture statutes that strip criminal 
     enterprises of their accumulated wealth and distribute it to 
     state and local law enforcement agencies. The forfeited 
     assets are then utilized by law enforcement agencies to 
     augment their capacity to combat a broad array of criminal 
     activity.
       New York has been the major recipient of these shared 
     forfeited assets. Indeed, since inception of this program in 
     1985, New York State law enforcement agencies have received 
     over $380 million in forfeited assets, more than three times 
     the amount of any other state. The New York State Police, 
     alone, have received in excess of $100 million, enabling the 
     agency to build a new $25 million Forensic Investigation 
     Center funded entirely by forfeited assets returned to New 
     York State. State and local police and prosecutors throughout 
     the State received over $28 million in federally forfeited 
     criminal proceeds in 1998 alone.
       Unfortunately, this very laudable and effective program is 
     threatened by H.R. 1658 as introduced by Congressman Hyde 
     which, in my view, has the potential of decimating the 
     forfeited asset sharing program in New York and across the 
     nation.
       Under the legitimate guise of protecting the rights of 
     ``innocent'' owners, the bill unfortunately goes far beyond 
     what is reasonably necessary to accomplish that goal and 
     restructures the Federal forfeiture law in a manner that tips 
     the scale sharply in favor of the criminal. The 
     unrealistically high burdens of proof the Hyde language 
     places upon police officers and the government, its 
     provisions that eliminate cost bonds, permit transfer of 
     assets to relatives, and permit the utilization of seized 
     assets for legal fees will, I believe, hasten the demise of 
     an outstanding program, and result in millions of dollars of 
     tainted criminal assets being retained by organized criminal 
     enterprises. It is, therefore, no surprise that H.R. 1658 is 
     strongly opposed by virtually every law enforcement 
     organization in the country, as sell as the United States 
     Department of Justice.
       Fortunately, to the extent that minor corrective measures 
     are needed with regard to Federal forfeiture, there are 
     realistic alternatives to H.R. 1658 which deserve your 
     consideration and support. The substitute amendment being 
     offered by Congressmen Sweeney, Hutchinson, and Weiner, 
     strengthens the procedures that protect truly innocent 
     owners, while preserving the inherent integrity of the 
     forfeiture laws.
       I respectfully request that you vote against H.R. 1658, 
     unless the Sweeney/Weiner/Hutchinson amendment passes.
       Please contact me if I can provide further information. 
     Thank you for your assistance.
           Sincerely,
     Katherine N. Lapp.
                                  ____

                                            New York State Police,


                                                 State Campus,

                                        Albany, NY, June 18, 1999.
     Hon. Benjamin A. Gilman,
     Member of Congress, U.S. House of Representatives, Rayburn 
         House Office Building, Washington, DC.
     Re: H.R. 1658.
       Dear Congressman Gilman: As you know, I have expressed our 
     strong opposition to the above-referenced measure. As a 
     result of follow-up discussions by counsel from our 
     respective offices, I would like to reiterate one particular 
     point that has surfaced in relationship to this bill.
       We are aware of no instance, since the inception of the 
     federal equitable forfeiture sharing program, of any case 
     involving this agency whereby a hardship was endured by a 
     truly innocent owner.
       It is not the intention of this agency, nor, in my opinion, 
     the intention of law enforcement in general, to deprive truly 
     innocent owners of property due to the illegal use of the 
     property by criminals.
       I would have no difficulty supporting a measure that 
     protects legitimate innocent owners such as bona-fide 
     purchasers or parents who have no involvement of knowledge of 
     the criminal activity. I do believe however, that the above-
     referenced measure goes too far in permitting the divestiture 
     of property to others in order to avoid forfeiture.
       Thank you for your assistance.
           Sincerely,
                                                 James W. McMahon,
                                                   Superintendent.

  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, I want to speak on the amendment. I say that because 
not all of the conversation we have had was on the amendment. My 
colleague from New York brilliantly argued against a nonexistent 
proposition, at least existent in the current context; namely, that we 
should do away with civil asset forfeiture. There was an agreement that 
we should have it.
  The questions are several. One, should the standard that the 
government has to meet to take someone's property because that person 
has either committed a crime or not prevented a crime, should the 
standard be the lowest possible, preponderance of the evidence, or 
should it be the intermediate standard of clear and convincing?
  We are in an ironic situation now, and we will be even after the bill 
is passed, as I hope it will be, because I do not think it should be 
changed from that; it is now harder to prove that one is guilty of the 
crime than to take away one's property, even though the property may be 
more. In fact, we have this situation: One may be punished here 
substantially by the loss of one's property not for committing a crime, 
but for failing to prevent a crime from being committed. One forfeits 
one's innocent-owner defense if one has not taken steps to prevent the 
crime from being committed.
  Now, the government need only prove, according to the amendment to 
the amendment, by a preponderance of the evidence that one failed to 
prevent the crime from being committed, and it can take one's property. 
That seems to me to be quite astonishing, that there is a lower 
standard for punishing someone for simply not stopping someone else 
from committing a crime than from committing the crime. It seems to me 
one is more culpable if one commits the crime, but it is easier to go 
after someone in the other circumstance.
  Again, I want to stress, the notion that there is some division 
between losing one's property in a civil forfeiture and losing it in a 
criminal proceeding exists in very few minds and in no reality. There 
is no difference between having one's property taken.
  The debate here is clear and convincing versus preponderance. The 
gentleman from New York said, in 85 percent of the cases, they are 
uncontested. Well, I submit that in 85 percent of the cases, if they 
are uncontested, establishing this to occur under a clear and 
convincing standard would not be that hard. One cannot lose, it seems 
to me, an uncontested case simply because the standard of truth is too 
high. We could probably meet beyond a reasonable doubt. We could 
probably meet absolute certainty, but we could certainly meet clear and 
convincing. So in those cases which are uncontested, the amendment is, 
of course, irrelevant. In those cases which are uncontested, there is 
no dispute, and one could easily win.
  Mr. WEINER. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from New York.
  Mr. WEINER. Mr. Chairman, we seem to have a problem about the 
premise. The gentleman seems to believe that the premise of civil asset 
forfeiture is always to be punitive, to penalize someone. In fact, the 
way it is most often used, as I described in the examples, is if there 
is a crack house in the middle of a block that is by being there, that 
is by its very existence, because someone fails to take action, what 
the Fed, in cooperation with the city and State authorities, are 
seeking to do, is take that crack house out of circulation.
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, the 
gentleman is off the point, and I am not going to let him get off the 
point in my time.
  The question was, should they have to meet the standard of clear and 
convincing or beyond reasonable doubt. I was quoting the gentleman 
where he said, in 85 percent of the cases they are uncontested. And my 
point, which I thought would be uncontested, is that an uncontested 
case, it is not that hard to meet the standard of clear and convincing, 
so the gentleman's crack houses would, in fact, be closed down.
  But the notion that it is not punitive I would have to reject. It is 
always punitive for the government to come and take away one's 
property. The notion that there is this nonpunitive confiscation is 
what is at the heart of this. The notion that one is found by the 
government to have done something terrible, and, as a result of that, 
one is going to lose one's property, and one is, therefore, not 
punished does not make any sense.
  There are a couple of other arguments I want to make. One, the 
gentleman said that he dislikes this because it covers pending cases. 
If the gentleman agrees that the current system is unfair, as they say 
they have, why do we not want to cover pending cases? Is the government 
entitled to a remaining quota of unfairness? How can one agree that the 
current system is wrong and needs changing and then

[[Page H4871]]

say, oh, but all of the poor guys who got caught in this current one, 
we do not help them. I would think that is a rather contradictory 
argument.
  The final point is the business about a lawyer. Again, we ought to 
stress, opponents of the bill, supporters of the amendment keep talking 
about the drug dealer. We are not here talking about drug dealers. We 
are talking about people who have been accused either of being drug 
dealers or of not stopping other people from being drug dealers. And 
the question is not how do we punish acknowledged drug dealers, the 
question is, by what procedure does the government determine whether or 
not one is a drug dealer or someone who aided a drug dealer. That is 
why the underlying bill is so much better than the amendment.
  Mr. SWEENEY. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in strong support of the Hutchinson-Weiner-
Sweeney substitute. This substitute will provide meaningful reform to 
asset forfeiture without removing the teeth from the most valuable tool 
in what seems to be a losing war against drugs.
  I have been here most of the afternoon listening to the debate, and I 
recognize that well-meaning people on both sides of this issue, 
including our chairman, the gentleman from Massachusetts (Mr. Frank), 
and the gentleman from Michigan (Mr. Conyers), have attempted to define 
and seek what is the balance between protecting the private property 
rights of innocent individuals, and also, at the same time, give law 
enforcement the tools they need to combat criminal enterprises.
  What we seek in offering this substitute is to define and find those 
fine points, because we recognize that we are losing ground on the war 
on drugs, and now, I believe, unfortunately, H.R. 1658 will take us a 
step backwards when we really should be moving forward, Mr. Chairman.
  H.R. 1658, while it protects the rights of law-abiding property 
owners, and that is its intention, and that is in part what it does do, 
it also protects law-breaking property owners as well. Is this what we 
want in the crosshairs in the middle of the battle on drugs? I do not 
think so.
  Mr. Chairman, H.R. 1658 rewards criminals by allowing them to 
challenge every forfeiture action, regardless of merit, and provides a 
free lawyer to do so, inundating the already overburdened Federal court 
system with frivolous claims. I have heard the Chairman argue that 
these folks are not criminals because they have not been proven guilty, 
but as the gentleman from New York (Mr. Weiner) pointed out, in 85 
percent of the cases, claims are not made. The Supreme Court has ruled 
on 11 different forfeiture cases upholding virtually in every one that 
the constitutional rights of individuals that have broad claims have 
not been violated.
  We seek balance here. Can we not strike a balance between free 
enterprise and criminal enterprise? I think we can, and I think this 
substitute achieves that.
  The Hutchinson-Weiner-Sweeney substitute is a rational alternative 
providing rational reform and uniform standards without crippling and 
tying the hands of law enforcement in the war against drugs.
  Now, moving from the rational to the excessive, the most outrageous 
aspect, in my view, of H.R. 1658 is a provision that allows heirs to 
inherit drug fortunes. We have a hard enough time as it is in this 
country allowing legitimate estates to pass to legitimate heirs without 
making it easier for criminals to literally take the money and run, and 
that is what we attempt to close here in this substitute.
  The loophole in H.R. 1658 would allow drug kingpins and other 
criminals who have amassed illegal fortunes to pass their wealth to 
their heirs, not just wives and children, but also friends, mistresses 
and business associates.
  Mr. Chairman, this substitute protects legitimate, innocent owners 
such as bona fide purchasers, or parents who have no involvement in or 
knowledge of criminal activity, without undercutting the ability of law 
enforcement to forfeit property from drug dealers, terrorists, alien 
smugglers and other criminals.
  At a time when the street price of heroin has dropped dramatically 
and the supply has increased, we must not weaken law enforcement's 
ability to fight drugs. I rise, therefore, in strong support of this 
substitute because it brings about balanced reforms to civil asset 
forfeiture without compromising law enforcement's ability to seize the 
assets of drug dealers and racketeers. When the heroin market rivals 
the stock market, why would we want to scale back the efforts of our 
police?

                              {time}  1545

  Law enforcement officers risk their lives every day to keep our 
neighborhoods safe. They patrol the dark ally, raid the drug dens and 
meth labs, and they patrol the borders in the dark of night. Many men 
and women do these things every day, risking their lives to make our 
neighborhoods safer.
  I am not prepared to undercut the good work of law enforcement, Mr. 
Chairman. That is why I support this substitute, and strongly urge my 
colleagues to do the same.
  If Members seek safer streets, support this substitute. If they 
believe that we ought to be tougher on criminals than on innocent 
people, support the Hutchinson-Weiner-Sweeney substitute. If Members 
support the good work of law enforcement, they should support this 
substitute. If they seek to do the right thing for America, support 
this substitute.
  Mr. Chairman, I urge my colleagues to do that.


Amendment No. 15 In The Nature of a Substitute Offered by Mr. Paul as a 
 Substitute for Amendment No. 25 in the Nature of a Substitute Offered 
                           by Mr. Hutchinson

  Mr. PAUL. Mr. Chairman, I offer an amendment in the nature of a 
substiute as a substitute for amendment the in the nature of a 
substitute.
  The Clerk read as follows:

       Amendment No. 15 in the nature of a substitute offered by 
     Mr. Paul as a substitute for amendment No. 25 in the nature 
     of a substitute offered by Mr. Hutchinson:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. FORFEITURE CONDITION.

       No property may be forfeited under any civil asset 
     forfeiture law unless the property's owner has first been 
     convicted of the criminal offense that makes the property 
     subject to forfeiture. The term ``civil forfeiture law'' 
     refers to any provision of Federal law (other than the Tariff 
     Act of 1930 or the Internal Revenue Code of 1986) providing 
     for the forfeiture of property other than as a sentence 
     imposed upon conviction of a criminal offense.

  (Mr. PAUL asked and was given permission to revise and extend his 
remarks.)
  Mr. PAUL. Mr. Chairman, I rise to offer a substitute amendment for 
the Hutchinson amendment. My understanding is that the Hyde amendment 
would improve current situations very much when it comes to seizure and 
forfeiture, and I strongly endorse the motivation of the gentleman from 
Illinois (Mr. Hyde) in his bill. I have a suggestion in my amendment to 
make this somewhat better.
  But I rise in strong opposition to the Hutchinson amendment, because 
not only do I believe that the Hutchinson amendment would undo 
everything that the gentleman from Illinois (Mr. Hyde) is trying to do, 
but I sincerely believe that the Hutchinson amendment would make 
current law worse. I think it is very important that we make a decision 
here on whether or not we want to continue the effort to build an armed 
police force out of Washington, D.C.
  The trends have been very negative over the last 20 or 30 years. It 
has to do a lot with the exuberance we show with our drug laws. I know 
they are all well-intended, but since 1976, when I recall the first 
criminal law that we passed here, they always pass nearly unanimously. 
Everyone is for law and order. But I think this is a perfect example of 
unintended consequences, the problems that we are dealing with today, 
because it is not the guilty that suffer. So often it is the innocent 
who suffer.
  I guess if Members are for a powerful national police and they want 
to be casual about the civil liberties of innocent people, I imagine 
they could go along and ruin this bill by passing the Hutchinson 
amendment.
  I think it is very important to consider another alternative. Mine 
addresses this, because in spite of how the gentleman from Illinois 
(Mr. Hyde) addresses this, which is in a very positive way, I really 
would like to go one step further. My bill, my substitute

[[Page H4872]]

 amendment, says this: ``No property may be forfeited under any Federal 
civil asset forfeiture law unless the property owner has first been 
convicted of the criminal offense that makes the property subject to 
forfeiture.''
  Is that too much to ask in America, that we do not take people's 
property if they are not even convicted of a crime? That seems to be a 
rather modest request. That is the way it used to be. We used to never 
even deal with laws like this at the national level. It is only 
recently that we decided we had to take away the State's right and 
obligation to enforce criminal law.
  I think it is time we thought about going in another direction. That 
is why I am very, very pleased with this bill on the floor today in 
moving in this direction. I do not think we should have a nationalized 
police force. I think that we should be very cautious in everything 
that we do as we promote law.
  This bill of the gentleman from Illinois (Mr. Hyde) could be 
strengthened with my amendment by saying that no forfeiture should 
occur, but the Hutchinson amendment makes it just the preponderance of 
evidence that they can take property. This is not right. This is not 
what America is all about. We are supposed to be innocent until proven 
guilty, but property is being taken from the American people with no 
charge of crime.
  They lose their property and they never get it back. They cannot 
afford to fight the courts, and there is a lot of frustration in this 
country today over this. This is why this bill is on this floor today. 
I am delighted it is here on this floor.
  I ask people to vote for my amendment, which would even make this a 
better bill, but certainly I think it would be wise not to vote for the 
Hutchinson amendment to make it much worse. I certainly think that on 
final passage, we certainly should support the Hyde bill.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last 
word.
  Mr. Chairman, I appreciate the spirit of the gentleman from Texas. I 
think it goes further than it ought to. I do not think we ought to 
restrict this only to cases where there was a criminal conviction, but 
the gentleman does highlight once again the importance of fundamental 
reform.
  There is one aspect of the issue that I wanted to go into further. 
That is, in the substitute offered by the gentleman from Arkansas and 
the two gentlemen from New York, one of the things that seems to me 
most egregious was this notion that yes, we will appoint you a lawyer, 
but before we will appoint you a lawyer our lawyer gets to question 
you. It really is quite an extraordinary notion.
  The current situation is one in which people, in some cases who have 
been convicted of nothing whatsoever, and who may, remember, only be 
accused, and again, let us be clear about this because of the innocent 
owner issue, they may be accused not of doing anything wrong, but of 
not sufficiently working to stop someone else. The someone else may be 
a very dangerous person.
  So one of the things we need to calibrate here is that if other armed 
people, dangerous people, bad people are doing something wrong and 
someone knows about it, and maybe they are using their property, you 
have to calibrate how much risk you have to take to stop it. You may be 
accused of not having done enough because you may have tried to do 
something anonymously, and you may not have wanted to acknowledge that.
  Mr. HUTCHINSON. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Arkansas.
  Mr. HUTCHINSON. Mr. Chairman, I just wanted to ask the gentleman from 
Massachusetts, in reference to the statement that you can question a 
claimant who seeks an appointment of attorney, there is a provision in 
the substitute that says the testimony of the claimant at such a 
hearing shall not be admitted in any other proceeding except in 
accordance with the rules which govern the testimony.
  So it is excluded, it would appear to me. That was the intent.
  Mr. FRANK of Massachusetts. I understand that. The gentleman is 
correct. One can only further terrify this unsophisticated and 
impoverished individual whose property you have taken, and you cannot 
use that in certain circumstances.
  Again, I want to go back to where I was. We are talking about someone 
here who is not even accused of a crime. We are talking about someone 
who is accused of not having been sufficiently enterprising in stopping 
someone else who may have been a very dangerous person or persons from 
committing a crime.
  The person who failed to be enough of an aggressive stopper has 
property taken. And because that property is taken, and this individual 
now has to prove that he or she is innocent to get the property back, 
the person who is accused of not having been vigorous enough in 
stopping a crime has his or her property taken. He or she then has to 
prove that they were innocent and that they really did try to stop it 
to get the property back. And they cannot afford a lawyer, and probably 
because the property which they maybe would have used to pay a lawyer 
has been seized and is held by the government, to get the property 
back, first of all they have to prove that the property that was seized 
is worth enough compared to what a lawyer might cost. That seems to me 
outrageous.
  Secondly, they can then be questioned by the people who seized their 
property. So they set up this extraordinarily intimidating situation 
and say, do not worry, we took your property because we did not think 
you worked hard enough to stop somebody dangerous from doing something 
bad, and we know you cannot afford a lawyer. Maybe we will appoint you 
a lawyer, but first, the people who took your property are going to 
question you about things. But do not worry, they will not use it 
against you.
  That is a statement that is less likely to be believed, and we can in 
fact chill people out of the effective exercise of their rights.
  Mr. HUTCHINSON. If the gentleman will yield further, Mr. Chairman, 
the gentleman made the statement that this person would not be under 
indictment. A person under indictment could also be subject to a 
seizure of assets and there could be a hearing. This person very well 
would be under criminal indictment.
  Mr. FRANK of Massachusetts. I would say two things to the gentleman. 
First of all, I invite him to read the Record. I have poor diction, but 
I never said indictment. I never used that. I don't know where it came 
from. That is not what I said.
  I am talking about someone who would not even be indictable because 
under the gentleman's innocent owner defense, he is talking about 
someone, again, and we are making the law for everybody, we are talking 
about people who are not even accused of a crime. They are accused of, 
and my friend, the gentleman from New York, cited these people, they 
own a piece of property that was being used by someone else for a 
crime, and the people using it might not be the nicest people in the 
world. They might be people who are a little intimidating. You could 
lose your property if you were not sufficiently vigorous in trying to 
stop them.
  What if you tried to stop them through an anonymous phone call 
because you did not want to have your name used, and they did not know 
you made the anonymous phone call? You would then have this difficult 
situation.
  Mr. RAMSTAD. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in support of the substitute amendment offered 
by my colleague, the gentleman from Arkansas (Mr. Hutchinson).
  Let me say first that I have the deepest respect and admiration for 
the author of the underlying bill, the gentleman from Illinois 
(Chairman Hyde). During my 4 years on the Committee on the Judiciary, I 
saw firsthand his absolute integrity and effective leadership, and as I 
have said hundreds of times before, nobody in this body represents more 
integrity or greater character than our beloved gentleman from Illinois 
(Chairman Hyde).
  However, that does not mean he is always right. As chair of the House 
Law Enforcement Caucus, I have serious concerns about the effect that 
the Civil Asset Forfeiture Reform Act would have on the law enforcement 
community's antidrug efforts.

[[Page H4873]]

  As Hennepin County Sheriff Pat McGowan, Hennapin County in Minnesota, 
in my district, Sheriff Pat McGowan told me recently, this legislation 
would absolutely gut the most important tool of law enforcement in the 
war against drugs. Make no mistake about it, this forfeiture law as it 
currently exists is the most important tool of law enforcement in 
fighting the war on drugs on the supply side.
  The clear and convincing standard would deprive law enforcement 
officers of a crucial deterrent, as was explained to me by Sheriff 
McGowan and others, while the substantial hardship exemption in the 
underlying bill would let drug dealers hide their assets before trial 
and allow them to continue dealing drugs pending trial.
  Also, frivolous claims would be encouraged by this legislation, and 
would further damage enforcement of drug laws. According to many law 
enforcement officers with whom I have spoken about this legislation, 
the so-called buy money to enforce drug laws would essentially dry up, 
because much if not most of the buy money comes from forfeiture of 
these assets.
  I think Congress needs to listen to the men and women of the 
Fraternal Order of Police who put their lives on the line every day in 
fighting the drug war. We need to help the police and not hurt them by 
adopting the preponderance of the evidence standard of proof in the 
Hutchinson amendment, which is eminently reasonable, and eliminating 
some of the other extreme restrictions on law enforcement in the 
underlying bill.
  As a former Criminal Justice Act attorney, Mr. Speaker, a former 
adjunct professor of civil rights and liberties, certainly, like every 
Member of this body, I support individual rights under our Bill of 
Rights.
  However, the current law has consistently been upheld as 
constitutional. Furthermore, Congress should not aid and abet drug 
dealers so they can profit from their illegal actions by weakening this 
important law.
  Yes, there have been some abuses under current law. We all know that. 
But several unfortunate anecdotal experiences do not justify 
legislation that would turn back the clock in the war against drugs.
  Let us be smarter than that. Let us support our police officers and 
other drug enforcement officers on the front lines every day in this 
battle. Support the Hutchinson amendment, that represents the original 
compromise. Let us not tie the hands of law enforcement. Let us not 
make their difficult and dangerous jobs even harder. Vote for the 
Hutchinson substitute.
  Mr. HYDE. Mr. Chairman, will the gentleman yield?
  Mr. RAMSTAD. I yield to the gentleman from Illinois.
  Mr. HYDE. Mr. Chairman, I just want to express the fact that I 
heartily disagree with the statement that we are helping drug dealers. 
The gentleman is assuming a fact that is not in evidence.

                              {time}  1600

  The civil asset forfeiture involves no drug dealers. It involves 
people who are accused of something at the level of probable cause, and 
it is punishing them before they have been adjudicated guilty by 
confiscating their property. That is the Soviet Union's way of justice, 
not America, where one should be, even if one is accused of being a 
drug dealer, innocent until one is proven guilty. It is quasi criminal. 
It is punishment. The Supreme Court has said that, and that is why we 
need clear and convincing rather than preponderance.
  Mr. RAMSTAD. Mr. Chairman, reclaiming whatever time might remain, the 
current law, I am sure the gentleman will agree, has been upheld 
consistently as constitutional and not violative of the First, Fourth, 
Fifth, Sixth, Eighth or Fourteenth Amendments, any of the amendments in 
the Bill of Rights that give us our precious civil rights and 
liberties.
  Virtually every police officer with whom I have spoken, both in 
Minnesota and nationally, as well as FBI Director Freeh, have stressed 
the urgency of retaining present law here. That is what I mean by 
weakening law enforcement's efforts by tying their hands. Let us not do 
that. Let us accept the Hutchinson amendment.
  Mr. BARR of Georgia. Mr. Chairman, I move to strike the requisite 
number of words.
  Mr. Chairman, with regard to the last speaker, I would cite a recent 
case just in the last year by the Supreme Court, United States versus 
Bajakhaian, whatever in the heck that is pronounced, B-A-J-A-K-H-A-I-A-
N. Its significance lies, not in its spelling, but in holding that 
there is a specific amendment to the Constitution, the Eighth 
Amendment, that indeed was the basis just last year in an opinion by 
Justice Clarence Thomas of the United States Supreme Court that struck 
down forfeiture on Eighth Amendment excessiveness grounds.
  So there is very strong judicial authority for the proposal 
underlying H.R. 1658 as put forward by myself, the gentleman from 
Massachusetts (Mr. Frank), the gentleman from Michigan (Mr. Conyers), 
the gentleman from Illinois (Mr. Hyde), and others that, indeed, our 
civil forfeiture laws do need to be reformed. Reform is what we are 
trying to do here. But let us again be very clear.
  Yes, as the gentleman from Illinois (Mr. Hyde) has stated, if H.R. 
1658 is passed by the House, passed by the Senate, and signed by the 
President, there will be some slight crimping in the style of law 
enforcement in terms of proceeding civilly against seized assets in 
order to forfeit them. But it will not in any way, shape, or form stop 
or take away the important tool that law enforcement has and needs.
  H.R. 1658 reforms, it does not eviscerate, it does not kill, it does 
not repeal, and it will not result in the repeal, the killing, or the 
gutting of civil asset forfeiture as a tool for Federal prosecutors.
  Of course, remember also, Mr. Chairman, that this does not reach 
State forfeitures. We are only talking about Federal civil asset 
forfeitures here.
  This proposal, H.R. 1658 reforms it. It does not do away with it. If, 
however, somebody likes civil asset forfeiture reform, then they will 
love the Hutchinson amendment, because the Hutchinson amendment, in 
addition to not truly reforming civil asset forfeiture at its core, 
vastly, vastly, Mr. Chairman, expands the scope of civil asset 
forfeiture powers of this government.
  Let me repeat that. The Hutchinson amendment vastly expands the 
scope, the jurisdiction, the reach of the Federal Government's current 
civil asset forfeiture power. The power, the scope currently that the 
Federal Government enjoys is already extensive. We are not arguing that 
today. It is extensive. It reaches many different provisions of title 
18, which is the Criminal Code.
  If, however, one makes even a cursory reading, Mr. Chairman, of the 
Hutchinson amendment, they will see very readily that it expands 
exponentially, as the Chairman said previously in his remarks, the 
scope, the power, the jurisdiction of the Federal Government to civilly 
seize and forfeit assets.
  At pages 772 and 773 of the Federal Criminal Code and Rules, 
published by the West Group, one can see very clearly, I could hold 
this up, but the Chairman could not read it, because the writing, the 
printing of the United States Criminal Code is indeed very small. Yet, 
the list of the additional predicates or that is base offenses for 
which civil asset forfeiture rely cover almost two pages, almost two 
full columns of the United States Criminal Code listing line after line 
after line after line after line after line of additional offenses for 
which the government can use civil asset forfeiture powers.
  Therefore, let me repeat this, the Hutchinson amendment, for anybody 
who wishes to reform, reign in, and refocus back to its original 
purpose, which was an extraordinary remedy for law enforcement, the 
civil asset forfeiture powers of the government, they must vote against 
the Hutchinson amendment, because the Hutchinson amendment vastly 
expands the asset forfeiture power of the government. There is no way 
getting around that. It is crystal clear on its face, and that is a 
defect in addition to the others that the Chairman and others have 
already pointed out reasons why this amendment proposed in the nature 
of a substitute to H.R. 1658 must be rejected in favor of the 
underlying bill, H.R. 1658, which does indeed reform, but does not take 
away the ability of our Federal prosecutors and law enforcement to 
seize truly those aspects of criminal endeavor, the assets that are 
truly used in furtherance of criminal activity.

[[Page H4874]]

  I urge rejection of the proposed amendment in the nature of a 
substitute, and adoption of the underlying bill, H.R. 1658.
  Mr. CANADY of Florida. Mr. Chairman I move to strike the requisite 
number of words.
  Mr. Chairman, I rise in opposition to the amendment in the nature of 
a substitute which has been offered by the gentleman from Arkansas (Mr. 
Hutchinson). I want to begin by thanking the gentleman from Illinois 
(Mr. Hyde) for his outstanding leadership on this important issue. This 
is the sort of issue that the Committee on the Judiciary should be very 
much concerned about, and I am very pleased that the Chairman has made 
this issue a priority.
  I also want to thank my constituent, Mr. David Pobjecky, who brought 
to my attention a case that highlights the need for the legislation of 
the gentleman from Illinois (Mr. Hyde) and the importance of not 
weakening the legislation that the gentleman from Illinois (Mr. Hyde) 
has brought to the floor.
  Mr. Pobjecky, my constituent, is an attorney who has represented the 
Jones family of Glades County, Florida, whose property was seized by 
the Federal Government. It took that family 6 years to gain control of 
their property even though they were innocent of any wrongdoing.
  In September of 1988, the United States Government seized 4,346 acres 
of the Jones family ranchland and filed a civil forfeiture action 
against the ranch based on a plane crash that occurred 2\1/2\ years 
earlier and on property a quarter of a mile from their ranch.
  The government alleged that the property was intended to be used as a 
landing site for cocaine smugglers. The Jones family denied any 
knowledge, consent, or participation in the alleged wrongful acts.
  The case went to trial 5 years later in October of 1993. In May of 
1994, the U.S. District Court for the Southern District of Florida 
found for the owners of the ranch. The court ruled that the case 
presented by the claimants is so clear, and the response by the United 
States is sufficiently wanting, that the court has determined that the 
claimants are, indeed, innocent owners entitled to the remedy and 
return of their property.
  Judge Hoover who wrote for the court noted that fundamental rights of 
ownership and the loss of those rights were the core of this case and 
concluded with this caution, ``in the understandable zeal to enforce 
the criminal laws, constant vigilance must be exercised to protect the 
rights of all, especially those who may be caught up in a net loosely 
thrown around those who are guilty.''

  The same court subsequently awarded attorneys' fees and costs to the 
Jones family for their claim filed Under the Equal Access to Justice 
Act. The court found that the United States did not have a reasonable 
basis in law or fact for bringing the case to trial and should have 
concluded that the owners of the ranch could establish an innocent 
owner defense.
  The legislation we are considering today would have ensured that the 
Jones family would not have suffered this injustice at the hands of the 
government. The bill would change the standard of proof to be satisfied 
by the government from probable cause to clear and convincing evidence, 
as we have been discussing here. The bill would require the government 
to prove its case and would eliminate the requirement that a property 
owner prove his innocence.
  The seizure of the Jones family ranch never would have been approved 
if the United States had been required to prove by clear and convincing 
evidence that the ranch was subject to forfeiture.
  In 1994 when he finally decided for the Jones family, Judge Hoover 
said that it is questionable whether this forfeiture action ever really 
had a valid basis. That is the kind of cases that are being brought. 
Those are the kind of cases where people are having their property tied 
up for year after year after year, and it is not right.
  Now, this bill would also allow a property owner who prevails in a 
forfeiture action to sue the government for any destruction or damage 
to his property. I go back to the Jones case. The Jones family was 
unable to maintain their land, more than 4,000 acres of their ranch 
from September of 1988 to May of 1994. This resulted in significant 
damage to the property, since ranchland needs to be constantly 
maintained.
  Under current law, the Jones family can sue the United States for 
damage to their land. The bill before the House today would provide the 
Jones family with at least the possibility of recovering compensation 
for resulting damage to their property.
  The case of the Jones family is only one example of innocent 
Americans who have had to undergo lengthy and costly battles to regain 
their property. No one in the United States of America should have to 
go through a legal nightmare like this. No one in America should be 
treated this way by the government of the United States. No one in 
America should be subjected to such an arbitrary and destructive use of 
governmental power.
  Now, I want to conclude by urging the rejection of the substitute 
offered by the gentleman from Arkansas (Mr. Hutchinson). I believe that 
the gentleman has a proposal here that falls short of solving the 
problem with current law and in some respects actually makes the 
problem worse. I understand he is operating under the best of 
intentions, but I think his proposal does fall short in those respects.
  I would also urge the rejection of the amendment offered by the 
gentleman from Texas (Mr. Paul). I believe that there is a proper place 
for civil asset forfeiture, and his amendment should be rejected, and 
the Hyde proposal should be adopted.
  Mr. FRANK of Massachusetts. Mr. Chairman, having consulted with 
various parties, I ask unanimous consent that debate on this substitute 
and all amendments thereto end at 4:45 p.m., with the remaining time to 
be divided equally between the gentleman from Arkansas (Mr. Hutchinson) 
and the gentleman from Illinois (Mr. Hyde), chairman of the committee.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Massachusetts?
  There was no objection.
  The CHAIRMAN. Under the terms of the unanimous consent agreement, the 
gentleman from Arkansas (Mr. Hutchinson) and the gentleman from 
Illinois (Mr. Hyde) each will control 15 minutes. Debate will conclude 
at 4:45 p.m.
  Mr. HUTCHINSON. Mr. Chairman, I yield 4 minutes to the gentleman from 
Florida (Mr. Mica).
  Mr. MICA. Mr. Chairman, I thank the gentleman from Arkansas for 
yielding to me.
  Mr. Chairman, I rise in opposition to the amendment offered by the 
gentleman from Texas (Mr. Paul) in support of the amendment offered by 
the gentleman from Arkansas (Mr. Hutchinson) in opposition to H.R. 
1658.
  I think the good Lord knows that, any time we have the distinguished 
gentleman from Illinois (Mr. Hyde), the chairman of the Committee on 
the Judiciary, as an advocate in alliance with the distinguished 
gentleman from Massachusetts (Mr. Frank), and the gentleman from 
Georgia (Mr. Barr), we have formidable proponents for any proposition. 
I reluctantly rise in opposition to their proposal, H.R. 1658.
  I chair the Subcommittee on Criminal Justice, Drug Policy, and Human 
Resources dealing with illegal narcotics. I can only say that I have 
never been so inundated in the past number of months on any issue as 
much as in opposition to H.R. 1658 than by those in our law enforcement 
community. So I am reluctant to rise in opposition, but let me make a 
few comments.
  Asset forfeiture is a very critical tool in law enforcement. It 
allows law enforcement to take the profit out of crime and pay 
restitution to victims of crime. Forfeiture is a critical element in 
the fight against drug trafficking, and it literally ensures that crime 
does not pay.
  In the vast majority of cases, the asset forfeiture laws, as we have 
heard, have been very fairly applied and effectively applied for the 
benefit of both law enforcement and the public and our citizens. 
Forfeiture is an essential component on the war on drugs today. 
Weakening the laws or placing any unnecessary procedural hurdles in the 
paths of prosecutors could undercut these law enforcement efforts and 
could provide a windfall to criminal organizations that commit crime 
for profit.

[[Page H4875]]

  These are not just my words. This is what is being said about this 
proposed legislation, H.R. 1658, to me by those in the law enforcement 
community.

                              {time}  1615

  They say that the burden of proof is too high; that H.R. 1658 forces 
the government to prove its case by clear and convincing evidence. The 
usual standard for civil enforcement actions involving property is the 
preponderance of evidence. Thus, 1658 makes the government's burden in 
drug cases higher than it does in cases involving bank fraud, health 
care fraud or procurement fraud, giving, in this instance, those who 
deal in drugs more protection than bankers, doctors and defense 
contractors.
  Again, this is what is being said to me by the law enforcement 
community.
  They also charge that this proposal could encourage the filing of 
thousands of frivolous claims by criminals, their families, their 
friends and associates. They also are telling me, again, that H.R. 1658 
lets criminals abscond potentially with cash, vehicles and airplanes. 
The Hutchinson amendment, I might say, addresses each of these concerns 
that have been raised by the law enforcement community.
  Also, they say that H.R. 1658 allows drug dealers to pass drug 
profits on to their heirs, and this provision is eliminated by the 
Hutchinson proposal. And, finally, they are telling me that this could 
provide a windfall to criminals that we should eliminate.
  Mr. HYDE. Mr. Chairman, I yield 2 minutes to the gentleman from 
Massachusetts (Mr. Delahunt).
  Mr. DELAHUNT. Mr. Chairman, I thank the gentleman for yielding me 
this time. I think this is important because we continue to hear about 
the issue of the burden of proof being a preponderance of the evidence. 
Well, that is true in most civil litigation. But this is not purely 
civil litigation, and I think it is important that my colleagues and 
the American public understand that.
  In asset forfeiture cases it has been clearly described by the United 
States Supreme Court as quasi-criminal in nature. This is a decision 
that was promulgated by the United States Supreme Court. And I daresay 
to equate the customary civil litigation that is transacted daily in 
our Federal courts with the kind of proceeding that we are discussing 
here today on the floor of the House, asset forfeiture, is absolutely 
incorrect. It is inaccurate. It is quasi-criminal in nature.
  To suggest that a standard of proof of clear and convincing is a 
burden that cannot be met by prosecutors, I daresay, is not an argument 
that holds water. Because in the vast majority of these cases the 
seizure of the asset is done in conjunction with a criminal 
investigation, and hopefully, hopefully, that investigation will 
produce an indictment which will meet an even higher standard, proof 
beyond a reasonable doubt.
  So I have to conclude that clear and convincing is an acceptable 
burden of proof in these cases.
  Mr. McCOLLUM. Mr. Chairman, I wish to make just a few points.
  First, I want to salute Chairman Hyde's commitment to reforming asset 
forfeiture. He has long been guided by a principled commitment to civil 
liberties for all citizens and a genuine concern that our forfeiture 
laws not be abused. He has been a leader in pursuing needed reforms of 
our forfeiture laws, and I want to commend his efforts to bring this 
bill to the floor. I share Chairman Hyde's concerns. We may disagree on 
some of the specifics, but I support his goal and the core reforms 
contained in H.R. 1658.
  Second, I want to note that H.R. 1658 is actually part of a larger 
trend to reform asset forfeiture that has been underway for most of 
this decade. Indeed, over the last 7 years the U.S. Supreme Court has 
handed down 11 asset forfeiture cases, that, taken together, have led 
to substantial reforms of our asset forfeiture laws and increased the 
due process protections afforded individuals. These cases, in turn, 
have led the Departments of Justice and Treasury to substantially 
revise their seizure and forfeiture policies.
  Because of these shifts over the last 7 years, it is now the case 
that under current law, property owners have a right to a jury trial in 
civil forfeiture cases; real property may not be seized without prior 
notice and a hearing; and all forfeitures must be proportional to the 
gravity of the underlying criminal offense. In other words: the law has 
been evolving to reflect more and more the concerns of Mr. Hyde. 
Changes to the law have anticipated his criticism.
  Mr. Chairman, now more than ever, asset forfeiture is a vital law 
enforcement tool. In my home state of Florida it may well be the single 
most important weapon that Federal, State and local law enforcement use 
in their heroic efforts to combat the illegal drug trade.
  And that, Mr. Chairman, continues to be my principal concern when we 
talk about reforming asset forfeiture: Will our ability to effectively 
combat the flood of illegal drugs into our country be unduly hampered 
by the proposed reforms?
  Heroin and cocaine continue to pour into the United States from 
abroad, endangering the future of our children and spreading fear 
through countless neighborhoods and communities. Clandestine 
methamphetamine labs are now operating throughout the entire country, 
pumping out their poison that destroys people and pollutes our 
environment.
  Today, on the streets of our country drug quantity is up, drug purity 
is at all-time highs and the price is down. We shouldn't be surprised 
then to learn that drug use among our children is skyrocketing. Indeed, 
there is a drug crisis engulfing our young people today. The numbers 
are simply shocking. From 1992-1997, drug use among youth aged 12 to 17 
has more than doubled. It's up 120%! That's an increase of 27% in the 
last year alone. For kids aged 12 to 17, first-time heroin use has 
increased 875% from 1991 to 1996! From 1992 to 1996, marijuana use 
increased by 253 percent among eighth-graders, 151 percent among tenth-
graders, and 84 percent among twelfth-graders. Overall, among kids aged 
12 to 17, marijuana smoking has jumped 125% from 1991 to 1997!
  Mr. Chairman, I believe this is unacceptable. We owe our children 
every effort to rid our streets and schools of drugs and the violence 
that accompany the drug trade. We must rededicate ourselves to a drug-
free America.
  And that means we must take care when we seek to reform our 
forfeiture laws that we do not render them ineffective.
  Last Congress, I supported the compromise forfeiture bill that Mr. 
Hyde steered through the Judiciary Committee by a vote of 26 to 1. That 
bill contained the core reforms that are in H.R. 1658. It also won the 
support of the law enforcement community as a balanced set of reforms 
that left forfeiture a viable tool. I continue to support the 
provisions from that bill, and for that reason, I will be supporting 
the Hutchinson amendment which reflects the key provisions of that 
compromise bill. I believe that H.R. 1658, as amended by the Hutchinson 
amendment, reforms our forfeiture laws while leaving them still useful 
in our nation's counter-drug efforts.
  Mr. PICKERING. Mr. Chairman, I rise in support of Mr. Hutchinson's 
substitute to H.R. 1658, the Asset Forfeiture Bill.
  We all agree the fundamental principle of fairness should play a 
central role in asset forfeiture proceedings: the burden of proof 
should be on the government; the government should not hold property 
without probable cause; a property owner should have an early 
opportunity to challenge a seizure of assets and innocent owners should 
be protected.
  These examples of fairness are already important features of current 
asset forfeiture law, and are advanced in the Hutchinson substitute 
without undermining the important role asset forfeiture law plays in 
modern law enforcement.
  Today in my district, State and Local Law Enforcement officials 
confront sophisticated criminals and criminal enterprises in possession 
of illegal property, and in many circumstances, controlling vast ill-
gotten resources. Asset forfeiture law allows State and Local law 
enforcement officials to separate these criminals and enterprises from 
their illegal resources, denying them the use of these resources to 
continue their criminal businesses or defend themselves from personal 
criminal charges. Any modification in asset forfeiture law should 
preserve this important effect of asset forfeiture on criminals.
  While reform of asset forfeiture law to reduce the already 
infrequent, occasional unfair outcome for a particular individual is 
appropriate, criminals should not benefit from the modifications 
designed to improve and bolster the rights of innocent property owners 
and law abiding citizens.
  The Hutchinson substitute produces this sensible reform without 
removing from our local law enforcement officials one of their most 
important and effective tools against criminals and their crack houses, 
drug money, drug vehicles and the myriad of other resources and 
property criminals possess.
  It is important to remember the focus of asset forfeiture law is the 
illegal property. The illegal property itself, be it drug money or its 
proceeds in the form of cars, or planes or houses, is subject to 
forfeiture because it constitutes the bounty of a criminal enterprise, 
and thus is illegal. It is illegal in and of itself, like heroin 
itself, or cocaine, and thus similarly

[[Page H4876]]

subject to forfeiture. Insofar as a person unconnected to the criminal 
enterprise has a legal property interest in the property, he or she may 
state their claim and reclaim their property.
  Under current law, criminals and those with illegal interests in the 
property are distinguished from those with legal interests by 
procedures in the law which the Substitute preserves. Unlike the bill 
advanced by the respected Chairman of the Judiciary Committee, the 
substitute strengthens this distinction, protecting the innocent while 
disentitling the criminal. I urge passage of the Hutchinson substitute.
  Mr. HYDE. Mr. Chairman, I yield back the balance of my time.
  Mr. HUTCHINSON. Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN. The question is on the amendment in the nature of a 
substitute offered by the gentleman from Texas (Mr. Paul) as a 
substitute for the amendment in the nature of a substitute offered by 
the gentleman from Arkansas (Mr. Hutchinson).
  The amendment in the nature of a substitute offered as a substitute 
for the amendment in the nature of a substitute was rejected.
  The CHAIRMAN. The question is on the amendment in the nature of a 
substitute offered by the gentleman from Arkansas (Mr. Hutchinson).
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             Recorded Vote

  Mr. HUTCHINSON. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 155, 
noes 268, not voting 11, as follows:

                             [Roll No. 254]

                               AYES--155

     Allen
     Andrews
     Bachus
     Baird
     Ballenger
     Barcia
     Barrett (WI)
     Barton
     Bateman
     Bilbray
     Blagojevich
     Blumenauer
     Blunt
     Boehlert
     Bonior
     Boswell
     Boyd
     Brady (TX)
     Bryant
     Buyer
     Calvert
     Capps
     Cardin
     Castle
     Chambliss
     Coburn
     Collins
     Condit
     Cooksey
     Cramer
     Crowley
     Cubin
     Deal
     Deutsch
     Dickey
     Dixon
     Doggett
     Dooley
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Etheridge
     Fowler
     Frelinghuysen
     Gekas
     Gilman
     Gordon
     Goss
     Green (WI)
     Greenwood
     Gutierrez
     Hayes
     Herger
     Hill (IN)
     Hilleary
     Hoeffel
     Holden
     Holt
     Hooley
     Horn
     Houghton
     Hoyer
     Hulshof
     Hutchinson
     Inslee
     Isakson
     John
     Johnson (CT)
     Jones (NC)
     Jones (OH)
     Kildee
     Kind (WI)
     Kleczka
     Knollenberg
     Kuykendall
     Larson
     Latham
     Leach
     Levin
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     McCarthy (NY)
     McCollum
     McCrery
     McDermott
     McHugh
     McIntyre
     McNulty
     Mica
     Miller (FL)
     Moore
     Moran (KS)
     Moran (VA)
     Morella
     Myrick
     Norwood
     Nussle
     Ose
     Oxley
     Pallone
     Pascrell
     Peterson (MN)
     Pickering
     Pomeroy
     Porter
     Portman
     Pryce (OH)
     Quinn
     Ramstad
     Regula
     Reyes
     Reynolds
     Rogers
     Ros-Lehtinen
     Rothman
     Roukema
     Salmon
     Sanchez
     Saxton
     Shaw
     Shays
     Sherman
     Shows
     Sisisky
     Slaughter
     Smith (WA)
     Souder
     Stabenow
     Stearns
     Stupak
     Sweeney
     Taylor (MS)
     Terry
     Thomas
     Thompson (CA)
     Thornberry
     Thune
     Thurman
     Turner
     Visclosky
     Vitter
     Walden
     Walsh
     Waxman
     Weiner
     Weldon (FL)
     Weldon (PA)
     Weygand
     Whitfield
     Wolf
     Wu
     Young (FL)

                               NOES--268

     Abercrombie
     Ackerman
     Aderholt
     Archer
     Armey
     Baker
     Baldacci
     Baldwin
     Barr
     Barrett (NE)
     Bartlett
     Bass
     Becerra
     Bentsen
     Bereuter
     Berkley
     Berry
     Biggert
     Bilirakis
     Bishop
     Bliley
     Boehner
     Bonilla
     Bono
     Borski
     Boucher
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Burr
     Burton
     Callahan
     Camp
     Campbell
     Canady
     Cannon
     Capuano
     Carson
     Chabot
     Chenoweth
     Clay
     Clayton
     Clement
     Clyburn
     Coble
     Combest
     Conyers
     Cook
     Cox
     Coyne
     Crane
     Cummings
     Cunningham
     Danner
     Davis (FL)
     Davis (IL)
     Davis (VA)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     DeLay
     DeMint
     Diaz-Balart
     Dicks
     Dingell
     Doolittle
     Doyle
     Dreier
     Duncan
     Emerson
     Engel
     English
     Eshoo
     Evans
     Everett
     Ewing
     Farr
     Fattah
     Filner
     Fletcher
     Foley
     Forbes
     Ford
     Fossella
     Frank (MA)
     Franks (NJ)
     Frost
     Gallegly
     Ganske
     Gejdenson
     Gephardt
     Gibbons
     Gillmor
     Gonzalez
     Goode
     Goodlatte
     Goodling
     Graham
     Granger
     Green (TX)
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hansen
     Hastings (FL)
     Hastings (WA)
     Hayworth
     Hefley
     Hill (MT)
     Hilliard
     Hinchey
     Hinojosa
     Hobson
     Hoekstra
     Hostettler
     Hunter
     Hyde
     Istook
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jenkins
     Johnson, E. B.
     Johnson, Sam
     Kanjorski
     Kaptur
     Kelly
     Kennedy
     Kilpatrick
     King (NY)
     Kingston
     Klink
     Kolbe
     Kucinich
     LaFalce
     LaHood
     Lampson
     Lantos
     LaTourette
     Lee
     Lewis (CA)
     Lewis (GA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lofgren
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy (MO)
     McGovern
     McIntosh
     McKeon
     McKinney
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Metcalf
     Millender-McDonald
     Miller, Gary
     Miller, George
     Minge
     Mink
     Moakley
     Murtha
     Nadler
     Napolitano
     Neal
     Nethercutt
     Ney
     Northup
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pastor
     Paul
     Payne
     Pease
     Pelosi
     Peterson (PA)
     Petri
     Phelps
     Pickett
     Pitts
     Pombo
     Price (NC)
     Radanovich
     Rahall
     Rangel
     Riley
     Rivers
     Rodriguez
     Roemer
     Rogan
     Rohrabacher
     Roybal-Allard
     Royce
     Rush
     Ryan (WI)
     Ryun (KS)
     Sabo
     Sanders
     Sandlin
     Sanford
     Sawyer
     Scarborough
     Schaffer
     Schakowsky
     Scott
     Sensenbrenner
     Serrano
     Sessions
     Shadegg
     Sherwood
     Shimkus
     Shuster
     Simpson
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Snyder
     Spence
     Spratt
     Stark
     Stenholm
     Strickland
     Stump
     Sununu
     Talent
     Tancredo
     Tanner
     Tauscher
     Tauzin
     Taylor (NC)
     Thompson (MS)
     Tiahrt
     Tierney
     Toomey
     Towns
     Traficant
     Udall (CO)
     Udall (NM)
     Upton
     Velazquez
     Vento
     Wamp
     Waters
     Watkins
     Watt (NC)
     Watts (OK)
     Weller
     Wexler
     Wicker
     Wilson
     Woolsey
     Wynn
     Young (AK)

                             NOT VOTING--11

     Berman
     Brown (CA)
     Costello
     Gilchrest
     Kasich
     Largent
     Lazio
     McInnis
     Mollohan
     Packard
     Wise

                              {time}  1643

  Ms. JACKSON-LEE of Texas, Ms. McKINNEY, and Messrs. LaFALCE, NEY, 
ROGAN, KINGSTON, BURTON of Indiana, FORBES, HUNTER, and BARTLETT of 
Maryland changed their vote from ``aye'' to ``no.''
  Ms. SLAUGHTER and Messrs. VITTER, BARCIA, BONIOR, EHLERS, WELDON of 
Pennsylvania, and MORAN of Kansas changed their vote from ``no'' to 
``aye.''
  So the amendment in the nature of a substitute was rejected.
  The result of the vote was announced as above recorded.
  Mr. HYDE. Mr. Chairman, I ask unanimous consent that the remainder of 
the bill be printed in the Record and open to amendment at any point.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Illinois?
  There was no objection.
  The text of the remainder of the committee amendment in the nature of 
a substitute is as follows:

     SEC. 2. CREATION OF GENERAL RULES RELATING TO CIVIL 
                   FORFEITURE PROCEEDINGS.

       Section 981 of title 18, United States Code, is amended--
       (1) by inserting after subsection (i) the following:
       ``(j)(1)(A) In any nonjudicial civil forfeiture proceeding 
     under a civil forfeiture statute, with respect to which the 
     agency conducting a seizure of property must give written 
     notice to interested parties, such notice shall be given as 
     soon as practicable and in no case more than 60 days after 
     the later of the date of the seizure or the date the identity 
     of the interested party is first known or discovered by the 
     agency, except that the court may extend the period for 
     filing a notice for good cause shown.
       ``(B) A person entitled to written notice in such 
     proceeding to whom written notice is not given may on motion 
     void the forfeiture with respect to that person's interest in 
     the property, unless the agency shows--
       ``(i) good cause for the failure to give notice to that 
     person; or
       ``(ii) that the person otherwise had actual notice of the 
     seizure.
       ``(C) If the government does not provide notice of a 
     seizure of property in accordance with subparagraph (A), it 
     shall return the property and may not take any further action 
     to effect the forfeiture of such property.
       ``(2)(A) Any person claiming property seized in a 
     nonjudicial forfeiture proceeding may file a claim with the 
     appropriate official after the seizure.
       ``(B) A claim under subparagraph (A) may not be filed later 
     than 30 days after--
       ``(i) the date of final publication of notice of seizure; 
     or
       ``(ii) in the case of a person entitled to written notice, 
     the date that notice is received.
       ``(C) The claim shall state the claimant's interest in the 
     property.
       ``(D) Not later than 90 days after a claim has been filed, 
     the Attorney General shall

[[Page H4877]]

     file a complaint for forfeiture in the appropriate court or 
     return the property, except that a court in the district in 
     which the complaint will be filed may extend the period for 
     filing a complaint for good cause shown or upon agreement of 
     the parties.
       ``(E) If the government does not file a complaint for 
     forfeiture of property in accordance with subparagraph (D), 
     it shall return the property and may not take any further 
     action to effect the forfeiture of such property.
       ``(F) Any person may bring a claim under subparagraph (A) 
     without posting bond with respect to the property which is 
     the subject of the claim.
       ``(3)(A) In any case where the Government files in the 
     appropriate United States district court a complaint for 
     forfeiture of property, any person claiming an interest in 
     the seized property may file a claim asserting such person's 
     interest in the property within 30 days of service of the 
     Government's complaint or, where applicable, within 30 days 
     of alternative publication notice.
       ``(B) A person asserting an interest in seized property in 
     accordance with subparagraph (A) shall file an answer to the 
     Government's complaint for forfeiture within 20 days of the 
     filing of the claim.
       ``(4)(A) If the person filing a claim is financially unable 
     to obtain representation by counsel, the court may appoint 
     counsel to represent that person with respect to the claim.
       ``(B) In determining whether to appoint counsel to 
     represent the person filing the claim, the court shall take 
     into account such factors as--
       ``(i) the claimant's standing to contest the forfeiture; 
     and
       ``(ii) whether the claim appears to be made in good faith 
     or to be frivolous.
       ``(C) The court shall set the compensation for that 
     representation, which shall be equivalent to that provided 
     for court-appointed representation under section 3006A of 
     this title, and to pay such cost there are authorized to be 
     appropriated such sums as are necessary as an addition to the 
     funds otherwise appropriated for the appointment of counsel 
     under such section.
       ``(5) In all suits or actions brought under any civil 
     forfeiture statute for the civil forfeiture of any property, 
     the burden of proof is on the United States Government to 
     establish, by clear and convincing evidence, that the 
     property is subject to forfeiture.
       ``(6)(A) An innocent owner's interest in property shall not 
     be forfeited under any civil forfeiture statute.
       ``(B) With respect to a property interest in existence at 
     the time the illegal conduct giving rise to forfeiture took 
     place, the term `innocent owner' means an owner who--
       ``(i) did not know of the conduct giving rise to 
     forfeiture; or
       ``(ii) upon learning of the conduct giving rise to the 
     forfeiture, did all that reasonably could be expected under 
     the circumstances to terminate such use of the property.
       ``(C) With respect to a property interest acquired after 
     the conduct giving rise to the forfeiture has taken place, 
     the term `innocent owner' means a person who, at the time 
     that person acquired the interest in the property, was--
       ``(i)(I) a bona fide purchaser or seller for value 
     (including a purchaser or seller of goods or services for 
     value); or
       ``(II) a person who acquired an interest in property 
     through probate or inheritance; and
       ``(ii) at the time of the purchase or acquisition 
     reasonably without cause to believe that the property was 
     subject to forfeiture.
       ``(D) Where the property subject to forfeiture is real 
     property, and the claimant uses the property as the 
     claimant's primary residence and is the spouse or minor child 
     of the person who committed the offense giving rise to the 
     forfeiture, an otherwise valid innocent owner claim shall not 
     be denied on the ground that the claimant acquired the 
     interest in the property--
       ``(i) in the case of a spouse, through dissolution of 
     marriage or by operation of law, or
       ``(ii) in the case of a minor child, as an inheritance upon 
     the death of a parent,
     and not through a purchase. However, the claimant must 
     establish, in accordance with subparagraph (C), that at the 
     time of the acquisition of the property interest, the 
     claimant was reasonably without cause to believe that the 
     property was subject to forfeiture.
       ``(7) For the purposes of paragraph (6)--
       ``(A) ways in which a person may show that such person did 
     all that reasonably can be expected may include demonstrating 
     that such person, to the extent permitted by law--
       ``(i) gave timely notice to an appropriate law enforcement 
     agency of information that led the person to know the conduct 
     giving rise to a forfeiture would occur or has occurred; and
       ``(ii) in a timely fashion revoked or attempted to revoke 
     permission for those engaging in such conduct to use the 
     property or took reasonable actions in consultation with a 
     law enforcement agency to discourage or prevent the illegal 
     use of the property; and
       ``(B) in order to do all that can reasonably be expected, a 
     person is not required to take steps that the person 
     reasonably believes would be likely to subject any person 
     (other than the person whose conduct gave rise to the 
     forfeiture) to physical danger.
       ``(8) As used in this subsection:
       ``(1) The term `civil forfeiture statute' means any 
     provision of Federal law (other than the Tariff Act of 1930 
     or the Internal Revenue Code of 1986) providing for the 
     forfeiture of property other than as a sentence imposed upon 
     conviction of a criminal offense.
       ``(2) The term `owner' means a person with an ownership 
     interest in the specific property sought to be forfeited, 
     including a leasehold, lien, mortgage, recorded security 
     device, or valid assignment of an ownership interest. Such 
     term does not include--
       ``(i) a person with only a general unsecured interest in, 
     or claim against, the property or estate of another;
       ``(ii) a bailee unless the bailor is identified and the 
     bailee shows a colorable legitimate interest in the property 
     seized; or
       ``(iii) a nominee who exercises no dominion or control over 
     the property.
       ``(k)(1) A claimant under subsection (j) is entitled to 
     immediate release of seized property if--
       ``(A) the claimant has a possessory interest in the 
     property;
       ``(B) the continued possession by the United States 
     Government pending the final disposition of forfeiture 
     proceedings will cause substantial hardship to the claimant, 
     such as preventing the functioning of a business, preventing 
     an individual from working, or leaving an individual 
     homeless; and
       ``(C) the claimant's likely hardship from the continued 
     possession by the United States Government of the seized 
     property outweighs the risk that the property will be 
     destroyed, damaged, lost, concealed, or transferred if it is 
     returned to the claimant during the pendency of the 
     proceeding.
       ``(2) A claimant seeking release of property under this 
     subsection must request possession of the property from the 
     appropriate official, and the request must set forth the 
     basis on which the requirements of paragraph (1) are met.
       ``(3) If within 10 days after the date of the request the 
     property has not been released, the claimant may file a 
     motion or complaint in any district court that would have 
     jurisdiction of forfeiture proceedings relating to the 
     property setting forth--
       ``(A) the basis on which the requirements of paragraph (1) 
     are met; and
       ``(B) the steps the claimant has taken to secure release of 
     the property from the appropriate official.
       ``(4) If a motion or complaint is filed under paragraph 
     (3), the district court shall order that the property be 
     returned to the claimant, pending completion of proceedings 
     by the United States Government to obtain forfeiture of the 
     property, if the claimant shows that the requirements of 
     paragraph (1) have been met. The court may place such 
     conditions on release of the property as it finds are 
     appropriate to preserve the availability of the property or 
     its equivalent for forfeiture.
       ``(5) The district court shall render a decision on a 
     motion or complaint filed under paragraph (3) no later than 
     30 days after the date of the filing, unless such 30-day 
     limitation is extended by consent of the parties or by the 
     court for good cause shown.''; and
       (2) by redesignating existing subsection (j) as subsection 
     (l).

     SEC. 3. AMENDMENT TO THE CONTROLLED SUBSTANCES ACT.

       Section 518 of the Controlled Substances Act (21 U.S.C. 
     888) is repealed.

     SEC. 4. COMPENSATION FOR DAMAGE TO SEIZED PROPERTY.

       (a) Tort Claims Act.--Section 2680(c) of title 28, United 
     States Code, is amended--
       (1) by striking ``law-enforcement'' and inserting ``law 
     enforcement''; and
       (2) by inserting before the period the following: ``, 
     except that the provisions of this chapter and section 
     1346(b) of this title do apply to any claim based on the 
     destruction, injury, or loss of goods, merchandise, or other 
     property, while in the possession of any officer of customs 
     or excise or any other law enforcement officer, if the 
     property was seized for the purpose of forfeiture but the 
     interest of the claimant is not forfeited''.
       (b) Department of Justice.--
       (1) In general.--With respect to a claim that cannot be 
     settled under chapter 171 of title 28, United States Code, 
     the Attorney General may settle, for not more than $50,000 in 
     any case, a claim for damage to, or loss of, privately owned 
     property caused by an investigative or law enforcement 
     officer (as defined in section 2680(h) of title 28, United 
     States Code) who is employed by the Department of Justice 
     acting within the scope of his or her employment.
       (2) Limitations.--The Attorney General may not pay a claim 
     under paragraph (1) that--

[[Page H4878]]

       (A) is presented to the Attorney General more than 1 year 
     after it occurs; or
       (B) is presented by an officer or employee of the United 
     States Government and arose within the scope of employment.

     SEC. 5. PREJUDGMENT AND POSTJUDGMENT INTEREST.

       Section 2465 of title 28, United States Code, is amended--
       (1) by inserting ``(a)'' before ``Upon''; and
       (2) adding at the end the following:
       ``(b) Interest.--
       ``(1) Post-judgment.--Upon entry of judgment for the 
     claimant in any proceeding to condemn or forfeit property 
     seized or arrested under any Act of Congress, the United 
     States shall be liable for post-judgment interest as set 
     forth in section 1961 of this title.
       ``(2) Pre-judgment.--The United States shall not be liable 
     for prejudgment interest, except that in cases involving 
     currency, other negotiable instruments, or the proceeds of an 
     interlocutory sale, the United States shall disgorge to the 
     claimant any funds representing--
       ``(A) interest actually paid to the United States from the 
     date of seizure or arrest of the property that resulted from 
     the investment of the property in an interest-bearing account 
     or instrument; and
       ``(B) for any period during which no interest is actually 
     paid, an imputed amount of interest that such currency, 
     instruments, or proceeds would have earned at the rate 
     described in section 1961.
       ``(3) Limitation on other payments.--The United States 
     shall not be required to disgorge the value of any intangible 
     benefits nor make any other payments to the claimant not 
     specifically authorized by this subsection.''.

     SEC. 6. APPLICABILITY.

       (a) In General.--Unless otherwise specified in this Act, 
     the amendments made by this Act apply with respect to claims, 
     suits, and actions filed on or after the date of the 
     enactment of this Act.
       (b) Exceptions.--
       (1) The standard for the required burden of proof set forth 
     in section 981 of title 18, United States Code, as amended by 
     section 2, shall apply in cases pending on the date of the 
     enactment of this Act.
       (2) The amendment made by section 5 shall apply to any 
     judgment entered after the date of enactment of this Act.

  The CHAIRMAN. The question is on the committee amendment in the 
nature of a substitute, as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The CHAIRMAN. Under the rule, the Committee rises.

                              {time}  1645

  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Hefley) having assumed the chair, Mr. LaHood, Chairman of the Committee 
of the Whole House on the State of the Union, reported that that 
Committee, having had under consideration the bill (H.R. 1658) to 
provide a more just and uniform procedure for Federal civil 
forfeitures, and for other purposes, pursuant to House Resolution 216, 
he reported the bill back to the House with an amendment adopted by the 
Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on the amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the committee amendment in the nature 
of a substitute.
  The committee amendment in the nature of a substitute was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. HYDE. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 375, 
noes 48, not voting 11, as follows:

                             [Roll No. 255]

                               AYES--375

     Abercrombie
     Ackerman
     Aderholt
     Allen
     Archer
     Armey
     Baird
     Baker
     Baldacci
     Baldwin
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Becerra
     Bentsen
     Bereuter
     Berkley
     Berry
     Biggert
     Bilirakis
     Bishop
     Blagojevich
     Bliley
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonior
     Bono
     Borski
     Boucher
     Brady (PA)
     Brady (TX)
     Brown (FL)
     Brown (OH)
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Capps
     Capuano
     Cardin
     Carson
     Castle
     Chabot
     Chenoweth
     Clay
     Clayton
     Clement
     Clyburn
     Coble
     Coburn
     Combest
     Conyers
     Cook
     Cooksey
     Cox
     Coyne
     Cramer
     Crane
     Cummings
     Cunningham
     Danner
     Davis (FL)
     Davis (IL)
     Davis (VA)
     Deal
     DeFazio
     DeGette
     Delahunt
     DeLauro
     DeLay
     DeMint
     Diaz-Balart
     Dickey
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     Engel
     English
     Eshoo
     Etheridge
     Evans
     Everett
     Ewing
     Farr
     Fattah
     Filner
     Fletcher
     Foley
     Forbes
     Ford
     Fossella
     Fowler
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gejdenson
     Gephardt
     Gibbons
     Gillmor
     Gonzalez
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Green (TX)
     Green (WI)
     Greenwood
     Gutierrez
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hansen
     Hastings (FL)
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill (MT)
     Hilleary
     Hilliard
     Hinchey
     Hinojosa
     Hobson
     Hoeffel
     Hoekstra
     Holden
     Holt
     Hooley
     Horn
     Hostettler
     Hoyer
     Hulshof
     Hunter
     Hyde
     Inslee
     Isakson
     Istook
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jenkins
     Johnson, E. B.
     Johnson, Sam
     Jones (OH)
     Kanjorski
     Kaptur
     Kelly
     Kennedy
     Kildee
     Kilpatrick
     King (NY)
     Kingston
     Kleczka
     Klink
     Knollenberg
     Kolbe
     Kucinich
     Kuykendall
     LaFalce
     LaHood
     Lampson
     Lantos
     Largent
     Larson
     LaTourette
     Leach
     Lee
     Levin
     Lewis (CA)
     Lewis (GA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lofgren
     Lowey
     Lucas (KY)
     Lucas (OK)
     Luther
     Maloney (NY)
     Manzullo
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McHugh
     McIntosh
     McIntyre
     McKeon
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Metcalf
     Millender-McDonald
     Miller (FL)
     Miller, Gary
     Miller, George
     Minge
     Mink
     Moakley
     Moran (KS)
     Moran (VA)
     Morella
     Murtha
     Nadler
     Napolitano
     Neal
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Oberstar
     Obey
     Olver
     Ortiz
     Ose
     Owens
     Oxley
     Pallone
     Pastor
     Paul
     Payne
     Pease
     Pelosi
     Peterson (PA)
     Petri
     Phelps
     Pickett
     Pitts
     Pombo
     Pomeroy
     Porter
     Price (NC)
     Pryce (OH)
     Quinn
     Radanovich
     Rahall
     Rangel
     Regula
     Riley
     Rivers
     Rodriguez
     Roemer
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Roybal-Allard
     Royce
     Rush
     Ryan (WI)
     Ryun (KS)
     Sabo
     Salmon
     Sanchez
     Sanders
     Sandlin
     Sanford
     Sawyer
     Saxton
     Scarborough
     Schaffer
     Schakowsky
     Scott
     Sensenbrenner
     Serrano
     Sessions
     Shadegg
     Shaw
     Sherman
     Sherwood
     Shimkus
     Shuster
     Simpson
     Sisisky
     Skeen
     Skelton
     Slaughter
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Snyder
     Spence
     Spratt
     Stabenow
     Stark
     Stearns
     Stenholm
     Strickland
     Stump
     Stupak
     Sununu
     Talent
     Tancredo
     Tanner
     Tauscher
     Tauzin
     Taylor (NC)
     Terry
     Thomas
     Thompson (MS)
     Thornberry
     Thune
     Thurman
     Tiahrt
     Tierney
     Toomey
     Towns
     Traficant
     Udall (CO)
     Udall (NM)
     Upton
     Velazquez
     Vento
     Vitter
     Walden
     Walsh
     Wamp
     Watkins
     Watt (NC)
     Watts (OK)
     Waxman
     Weldon (PA)
     Weller
     Wexler
     Weygand
     Whitfield
     Wicker
     Wilson
     Wolf
     Woolsey
     Wu
     Wynn
     Young (AK)
     Young (FL)

                                NOES--48

     Andrews
     Bachus
     Barrett (WI)
     Bilbray
     Blumenauer
     Boswell
     Boyd
     Bryant
     Chambliss
     Collins
     Condit
     Crowley
     Cubin
     Deutsch
     Gekas
     Gilman
     Hayes
     Hill (IN)
     Houghton
     Hutchinson
     John
     Johnson (CT)
     Jones (NC)
     Kind (WI)
     Latham
     Maloney (CT)
     McCrery
     Mica
     Moore
     Myrick
     Pascrell
     Peterson (MN)
     Pickering
     Portman
     Ramstad
     Reyes
     Reynolds
     Roukema
     Shays
     Shows
     Souder
     Sweeney
     Taylor (MS)
     Thompson (CA)
     Turner
     Visclosky
     Weiner
     Weldon (FL)

                             NOT VOTING--11

     Berman
     Brown (CA)
     Costello
     Gilchrest
     Kasich
     Lazio
     McInnis
     Mollohan
     Packard
     Waters
     Wise

                              {time}  1705

  Mr. HOUGHTON changed his vote from ``aye'' to ``no.''
  Mr. ADERHOLT and Mr. HOLT changed their vote from ``no'' to ``aye.''
  So the bill was passed.
  The result of the vote was announced as above recorded.

[[Page H4879]]

  A motion to reconsider was laid on the table.
  Stated for:
  Mr. PACKARD. Mr. Speaker, I was unavoidably detained for Rollcall 
255, which was final passage of H.R. 1658, the Civil Asset Forfeiture 
Reform Act. I am a cosponsor of this legislation. Had I been present, I 
would have voted ``aye.''
  Mr. BERMAN. Mr. Speaker, I was unable to cast a vote on final passage 
of H.R. 1658, the Civil Asset Forfeiture Reform Act. Had I been 
present, I would have voted ``aye.''

                          ____________________