May 4, 2023

Chairman Jim Jordan
Ranking Member Jerrold Nadler
House Judiciary Committee
2138 Rayburn House Office Building
Washington, D.C. 20515
RE:H.R. 1525, the FAIR Act (Civil Asset Forfeiture Reform)

Dear Chairman Jordan and Ranking Member Nadler,
On behalf of the undersigned organizations dedicated to the protection of civil liberties
and property rights, we ask that you support H.R. 1525, the Fifth Amendment Integrity
Restoration Act (FAIR Act), a bill that will reform our federal civil asset forfeiture system. We
greatly appreciate that each of you has cosponsored the FAIR Act in prior Congresses, and urge
you to work to ensure that it now becomes law.
The FAIR Act is necessary because the current law of civil asset forfeiture allows thefederal government to seize—and keep—cash, cars, homes and other property that law
enforcement merely suspects is related to criminal activity. The government need not evercharge the property owner with a crime, much less secure a conviction, for it to seek forfeiture,and the procedural deck is stacked against private citizens who challenge the government. Thissystem is unjust on its face, has a disproportionate impact on poor and otherwise disadvantaged
communities, and undermines public respect for law enforcement.
Why does law enforcement use civil asset forfeiture? Quite simply, it has a strong
financial incentive to do so. In the federal system and in most states, the property that is seized
and forfeited does not go to the general treasuries, to be spent as legislative bodies determine
pursuant to law, but instead is kept by the law enforcement agencies themselves. 1
The FAIR Act attacks this improper financial incentive in two important ways. First, it
directs all federal forfeiture proceeds to the General Fund of the U.S. Treasury so that Congress
can appropriate those monies as it sees fit. Second, the bill ends the “equitable sharing” programthat enables state and local law enforcement to evade their state legislatures’ limits on state-level
forfeiture—limits that may include, for example, higher burdens of proof, more equitableprocedural rules, or a requirement that proceeds go only to the general treasury—by “partnering”
with federal law enforcement in exchange for a “cut” of forfeiture proceeds. The FAIR Act willclose this loophole that undermines hard-won state legislative reforms.
The financial incentives embedded in today’s civil asset forfeiture system are the mostimportant problem to address, but the FAIR Act also makes significant procedural reforms at thefederal level. Foremost, it ends administrative forfeiture proceedings. Today, more than 80% offederal forfeitures are finalized through an administrative process in which the same agency that
seized the property acts as judge and jury if the property owner challenges the forfeiture. 2 Theseadministrative forfeitures are not decided by administrative law judges but are typically handled
by the agency’s office of forfeiture counsel, which has a vested interest in their outcome. TheFAIR Act ensures that property owners have their day in a real court with a neutral judge.
Further procedural changes will also protect the public. Given the difficulty property
owners face when navigating the federal civil asset forfeiture regime, the bill will guarantee theright to counsel during federal civil forfeiture proceedings. It also requires the federalgovernment to prove by clear and convincing evidence (as opposed to mere preponderance of theevidence) that the property is related to a crime. Finally, innocent owners of property used byanother person to allegedly commit a crime will not have to prove their own innocence torecover their seized property; instead, the government will be required to show that the property
owner knew or should have known about the alleged unlawful use by that third party and failed
to take steps to prevent it.
It is also very important to emphasize what the FAIR Act does not do. Law enforcement
can continue seizing property based on probable cause; these reforms only address what happens
when the government seeks to keep the property through civil forfeiture. The FAIR Act does notprevent state and local law enforcement from using their own state-level civil asset forfeiturelaws, as long as they adhere to the procedures that those states’ legislatures have enacted.
Neither does the FAIR Act touch criminal asset forfeiture—forfeitures made after a criminal
conviction relating to the use of the seized property.
One defense of civil forfeiture is the vague claim that its use helps crimefighting, but theevidence for this claim is lacking. The Department of Justice’s own Inspector General has found
For a state-by-state analysis of civil forfeiture laws, see Policing for Profit: The Abuse of Civil Asset Forfeiture(3rd Edition) (Dec. 2020), available at https://ij.org/report/policing-for-profit-3/.
2
See Policing for Profit, supra n. 1, at pp. 24-26.
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that the department does not track how forfeitures might be linked to criminal prosecutions. 3 At
the state level, recent research demonstrates that crime rates did not increase and arrest rates did
not drop in New Mexico after that state abolished civil forfeiture in 2015. 4 In addition, Prof.
Brian D. Kelly conducted the first-ever multistate study of the impact of civil forfeiture andfound that there are no data supporting the argument that its use decreases crime, and ample
evidence that its primary purpose is to generate revenue. 5Finally, we are confident the public will support you in this reform effort. In a September
2020 national survey, respondents opposed any use of civil forfeiture as currently practiced, by amargin of 59% to 25%. 6 Moreover, 63% of respondents oppose allowing law enforcement
agencies to keep forfeiture proceeds for their own use, and 69% oppose allowing state law
enforcement to use the equitable sharing program to evade state restrictions. 7
For further information from any of our organizations, including legal briefs, economicstudies, state-by-state analysis, and constituent contacts, please direct your questions throughDan Alban, Senior Attorney and Co-Director of the National Initiative to End Forfeiture Abuseat the Institute for Justice, at dalban@ij.org. He will ensure that you reach the appropriate expert
in each of our organizations.
Sincerely,
Institute for Justice
American Civil Liberties Union
Americans for Prosperity
Competitive Enterprise Institute
Drug Policy Alliance
Due Process InstituteGoldwater Institute
Law Enforcement Action Partnership

Leadership Conference on Civil and Human Rights
NAACP
National Association of Criminal Defense Lawyers
National Federation of Independent Business
National Motorists Association
National Taxpayers Union
R Street Institute

See DOJ OIG, Review of the Department’s Oversight of Cash Seizure Case and Forfeiture Activities, (Mar. 2017),
at p. 16, available at https://www.oversight.gov/sites/default/files/oig-reports/e1702.pdf.
4
See Policing for Profit, supra n. 2, at pp. 32-33.
5
Prof. Brian D. Kelly, Does Forfeiture Work: Evidence from the States (Feb. 2021), available at https://ij.org/wpcontent/uploads/2021/02/does-forfeiture-work-web.pdf.
6Institute for Justice/YouGov poll, September 2020, available at https://ij.org/wp-content/uploads/2020/11/Resultsfor-Institute-for-Justice-Civil-Forfeiture-245-9.30.2020-1-Civil-Forfeiture-2.pdf.
7
Id. A 2018 IJ-YouGov poll showed similar results. See https://ij.org/press-release/new-poll-76-of-americansmore-likely-to-vote-for-candidates-who-back-forfeiture-reform/.
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