[Congressional Record Volume 162, Number 91 (Thursday, June 9, 2016)]
[Senate]
[Page S3723]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. GRASSLEY (for himself and Mr. Leahy):
S. 3045. A bill to amend title 18, United States Code, to reform
certain forfeiture procedures, and for other purposes; to the Committee
on the Judiciary.
Mr. GRASSLEY. Mr. President, today I am introducing the DUE PROCESS
Act. I am very pleased that Senator Leahy is a cosponsor of the bill.
This legislation will make important reforms to the practice of civil
asset forfeiture.
The Senate Judiciary Committee held hearings last year on the
problems associated with civil asset forfeiture. This is a process by
which a person who has been convicted of no crime, and in fact is often
not even charged with a crime, can nonetheless lose his property if the
property is suspected to be owned as a result of wrongdoing. Civil
asset forfeiture has a place in our society, including gaining control
over assets used to further terrorism and the drug trade. But there
have been excesses, and this bill is designed to address many of them.
Working together in a bipartisan and bicameral way, we have had
months long discussions about how to draft legislation to improve the
fairness of civil asset forfeiture. The bill that I am introducing
today has been introduced and passed through the House Judiciary
Committee on a bipartisan voice vote. It is the result of these
bipartisan and bicameral discussions. The Senate should consider the
same bill.
The DUE PROCESS Act broadens the timelines for an owner to challenge
forfeitures. It extends protections in existing law to judicial
forfeitures, not only administrative forfeitures. The government must
provide greater notice to owners whose property has been seized,
including notice of the rights that they may invoke to regain their
property and their right to be represented by counsel in contesting a
forfeiture either judicially or administratively. The property owner is
given more time to respond to the seizure. Very importantly, an owner
who challenges the seizure receives an initial hearing, at which time
she is further notified of her rights and will have her property
released if the seizure was not made according to law. Under the bill,
the government must prove that seizure is warranted by clear and
convincing evidence, rather than the current preponderance of the
evidence standard.
Some of these provisions are in the bill because of media reports,
including in my home state of Iowa. For instance, the Des Moines
Register has reported that in many instances, innocent motorists
surrender the property that law enforcement seizes without always
having an understanding of how the seizure can be challenged. The bill
will ensure that those whose assets are seized are given notice of the
process by which the seizure can be contested and their right to have
counsel represent them in the forfeiture proceeding.
In a change to criminal forfeiture, which can take place after a
defendant is convicted of a crime, the bill overturns the Supreme
Court's recent decision in Kaley v. United States. A defendant will
have the right to ask for a hearing to modify the seizure so as to
demonstrate that assets not associated with the charged criminal
activity can be used to hire the attorney of the defendant's choice.
The court is directed to consider various factors at the hearing.
Additionally, the bill makes it easier for those whose assets have
been seized to recover their attorney's fees when they settle their
cases. The bill requires the Justice Department's Inspector General to
audit a sample of civil forfeitures to make sure they are consistent
with the Constitution and the law. And it directs the Attorney General
to establish databases on real-time status of forfeitures and on the
types of forfeitures sought, the agencies seeking them, and the conduct
that leads the property to be forfeited.
Further, the bill codifies DOJARS policy to allow civil forfeiture in
structuring cases only when the property to be seized is derived from
an underlying crime other than structuring, or where it is done to
conceal illegal activity. Structuring is a crime by which cash deposits
or withdrawals are made with the intent of avoiding government
reporting requirements. In Iowa, for instance, prosecutors brought an
action against a restauranteur, Carole Hinders, who had deposited cash
from her operations without any intention to evade any reporting
requirement or to conceal some other illegal activity. After IRS
changed its policy, prosecutors dropped the case. The bill will prevent
the government from pursuing civil asset forfeiture cases such as these
in the future.
Finally, the bill expands existing protections for innocent owners of
property that is sought to be forfeited. The government will have to
prove that there is a substantial connection between the property and
an offense and that the owner of the seized property intentionally used
the property, knowingly consented to its criminal use, or reasonably
should have known that the property might be used in connection with
the offense.
Many of these provisions strengthen the Civil Asset Forfeiture Reform
Act. That legislation improved the process and provided greater
protection for innocent owners involved in civil asset forfeiture than
had previously been the case. But, as we have seen, excesses and
injustices still remain. The DUE PROCESS Act is designed to make
further progress in this area to protect the rights of people whose
property has been seized without any judicial finding of criminal
wrongdoing.
The problems associated with civil asset forfeiture need to be
addressed. In various ways, it would have been preferable to make
changes that go even beyond those in this bill. However, we do want to
work with law enforcement and address their legitimate interests and
concerns. I can assure them that we will continue to talk as this
legislation works its way to Senate passage.
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