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Statement of ACLU President Nadine Strossen
In Support of Congressional Asset Forfeiture Reform Act
For IMMEDIATE RELEASE
June 15, 1993
WASHINGTON -- I'm pleased to be here today on behalf of the American
Civil Liberties Union to support Representative Henry Hyde's Civil Asset
Forfeiture Act of 1993.
The ACLU believes that all civil forfeiture schemes inherently
violate fundamental constitutional rights, including the right not to be
deprived of property without due process of law and the right to be free
from punishment that is disproportionate to the offense. Our ultimate
goal, therefore, is the abandonment of all civil forfeitures.
While it certainly does not go that far, Congressman Hyde's bill does
take an important first step in the right direction. This bill would
reform forfeiture proceedings to provide property owners with some
significant procedural protections. It would also make it more difficult
for government to confiscate the property of innocent owners -- people who
were not aware of, or did not consent to, any illicit activity in
connection with their property.
These reforms are critically needed and long overdue because innocent
property owners, or those who have committed only minor infractions, are
now subject to draconian punishments and property deprivations.
Civil forfeiture has been used increasingly since 1984, when Congress
passed a law authorizing federal officials to seize any property used to
facilitate the drug trade, or that was purchased with drug money. Since
then civil forfeiture has been used to seize all kinds of personal and
real property, from family homes to lawn equipment. It has become a
nightmare for thousands of ordinary, law-abiding citizens.
Many innocent people lose their property under the current civil
forfeiture law because of procedural obstacles that make it difficult to
contest forfeitures. In particular, forfeiture laws include extremely
short periods for filing a claim for seized property -- 20 days or less.
Moreover, people contesting forfeitures must post a penal cost bond for a
substantial amount of money. The government has strictly enforced these
requirements, and has permanently deprived owners of their property for
any slight non-compliance with them.
Congressman Hyde's bill eliminates these unfair procedural hurdles:
it extends the deadline for contesting a seizure to 60 days and it drops
the cost bond requirement.
Another important reform in Congressman Hyde's bill is its
requirement that government prove that property it has seized was subject
to forfeiture by clear and convincing evidence.
Under current law, in contrast, the government may seize property
after showing only "probable cause" that the property was connected to
illicit activity. This standard, in reality, means only slightly more than
a hunch and far less than what's necessary in a court of law. Asset
seizures can currently be justified through hearsay or other "evidence"
that is deemed too unreliable even to be admissible in a judicial
proceeding. Worse yet, once the government has seized property on this
slim probable cause showing, it will acquire permanent title to the
property unless owners prove both that they had no knowledge of the
illicit activity and that they did not consent to it. But it is often
impossible to satisfy this heavy burden of proving what is essentially a
Moreover, requiring an innocent property owner to prove his or her
innocence turns fundamental due process principles on their head. As any
schoolchild knows, in America all persons are presumed innocent until the
government proves beyond a reasonable doubt that they are guilty. The only
reason why courts have not enforced these basic principles in the context
of civil asset forfeiture is because of a meaningless formal technicality.
As a technical, legalistic matter, a forfeiture proceeding is aimed
against property, rather than against the property owner. Furthermore, it
is civil in nature rather than criminal. Accordingly, courts have
"reasoned" that constitutional rights that would be enforced when people
face criminal penalties do not apply in the civil forfeiture context.
But this is a complete legal fiction. Often the value of forfeited
property far exceeds the amount of any criminal fine that could be
assessed even if the government could prove beyond a reasonable doubt that
the property owner had committed a crime. And to add insult to injury, the
government can confiscate property in a civil proceeding even if the
property owner was completely innocent of any crime -- indeed, even if no
one had ever committed a crime in connection with the property. Remember:
all the government needs is scant "probable cause" to believe that the
property was connected to an unlawful activity.
Congressman Hyde's bill is an important step toward restoring due
process for property owners by changing these unfair evidentiary rules.
Under this bill, the government must prove, by clear and convincing
evidence, both that the property owner knew of the involvement in unlawful
activity, and that he or she consented to such involvement. Congressman
Hyde's bill would also allow for the release of confiscated property if
the seizure causes a substantial hardship on the owner, a right to sue if
confiscated property is damaged through government negligence and a right
to court-appointed counsel.
Because of these and other important procedural protections it
provides, the American Civil Liberties Union urges Congress to promptly
pass the Civil Asset Forfeiture Reform Act of 1993. We also hope that
Congress will eventually pass further measures that will completely
overhaul civil asset forfeiture programs. Only such a complete overhaul
will fully restore fundamental rights for all Americans.
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