The Fifth Amendment Integrity Restoration (FAIR) Act, aimed at protecting the rights of property owners and restoring the role of the Fifth Amendment in civil asset forfeiture proceedings, was reintroduced in the United States Senate.
“The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime,” said the bill’s author, Sen. Rand Paul (R-KY).
It’s not just the federal government; many states have weak protections in place for property owners who find themselves ensnared in the web of civil asset forfeiture.
“The FAIR Act will protect Americans’ Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process,” continued Paul.
“Over the past few years, we’ve seen a wave of stories where the government unjustly seized property from innocent Americans without charging them with a crime,” said Rep. Tim Walberg (R-Mich.), who filed the companion piece of legislation (H.R. 1555) in the House.
The FAIR Act would end equitable sharing, often seen as a perverse incentive. Through equitable sharing, state and local law enforcement agencies are able to receive a percentage of funds for their role in assisting federal agencies in a seizure.
Additionally, the Act would provide protections for innocent victims of a flawed process.
Currently, property owners do not have to ever be accused or found guilty of a crime for their property to be seized and forfeited. The new law would require the government to bear the burden in proving that property owners either consented to having their property used in a crime or they were willfully blind to the activity.
Many states, like Texas, and the federal government only require a preponderance of evidence for assets to be forfeited, meaning no more than a mere suspicion is required. The new act would increase the evidentiary standard to “clear and convincing.” A similar bill has been filed in Texas to deal with this issue.
The bill would also break the cycle of funds being seized, forfeited, and then dispersed to the seizing entity. This can create an incentive for that entity to seize more, especially during times when budgets are limited. If passed, forfeited funds would go to the U.S. Treasury’s General Fund, allowing Congress to appropriate it where they see fit.
Also included in the bill are reforms to enhance reporting requirements, ensure the right to counsel, and reforms to IRS seizures that usually are the result of “structuring” claims. Structuring is strategically making cash bank deposits to avoid IRS reporting requirements.
Paul and Walberg first introduced the act in 2014, but reformers have made significant advances in the years since, turning opponents of reforms to proponents. As the federal government has been slow to move on reforms, state governments have made advancements and will continue to do so.