Malo periculosam, libertatem quam quietam servitutem.



July 2014

Sen. Paul Moves to Breathe Life Back Into Fifth Amendment

Written by , Posted in Big Government, The Courts, Criminal Justice & Tort

Right now, it is possible and quite common for the government to seize personal assets without trial or any other form of due process. Under what’s known as civil asset forfeiture, police can take property they claim may be part of a crime, though they need not prove so, and put that money in their department’s pocket. This gives police departments incentive to steal. To make matters worse, it is then up to the victim to prove their innocence, often at significant cost, if they want any hope of getting their property back.

Rand Paul has introduced a bill that would end this despicable practice:

Sen. Rand Paul yesterday introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which would protect the rights of citizens and restore the Fifth Amendment’s role in seizing property without due process of law. Under current law, law enforcement agencies may take property suspected of involvement in crime without ever charging, let alone convicting, the property owner. In addition, state agencies routinely use federal asset forfeiture laws; ignoring state regulations to confiscate and receive financial proceeds from forfeited property.

The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property. State law enforcement agencies will have to abide by state law when forfeiting seized property. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.

Radley Balko has more on how the law will also stop state and local officials from skirting state law by conspiring, for a kickback, with the feds.

The bill would also require states “to abide by state law when forfeiting seized property.” This is important. Currently, a number of state legislatures across the country have passed reform bills to rein in forfeiture abuses. The problem is that the federal government has a program known as “adoption” or “equitable sharing.” Under the program, a local police agency need only call up the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives or similar federal agency. That agency then “federalizes” the investigation, making it subject to federal law. The federal agency then initiates forfeiture proceedings under the laxer federal guidelines for forfeiture. The feds take a cut and then return the rest — as much as 80 percent — back to the local agency. This trick thwarts the intent of state legislature that have attempted to make civil forfeiture more fair when it comes to burden of proof, protections for innocent property owners and eliminating the perverse incentive of allowing forfeiture proceeds to go to the same police agency that made the seizure.

Which brings us to a final important provision in the bill: It would “would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.

To put it simply, agencies of the federal government have engaged in a criminal conspiracy with state police departments to loot and rob the American people. It’s about time that someone take the obvious position of ending their abuses.