Civil Asset Forfeiture Elimination Act

To eliminate civil asset forfeiture, and for other purposes. 1. Short title This Act may be cited as the Civil Asset Forfeiture Elimination Act I Federal Forfeiture 101. Conforming amendments to title 18 (a) General rules for civil forfeiture proceedings Section 983 of title 18, United States Code, is amended to read as follows: 983. Prohibiting civil forfeiture No person shall be required, under the laws of the United States, to forfeit to the United States any property, real or personal, pursuant to a civil forfeiture proceeding, including a nonjudicial civil forfeiture proceeding. . (b) Foreign forfeiture Section 981 of title 18, United States Code, is amended to read as follows: 981. Forfeiture involving foreign countries (a) Arrest or charge in a foreign country (1) In general If any person is arrested or charged in a foreign country in connection with an offense that would give rise to the forfeiture of property in the United States under the Controlled Substances Act, the Attorney General may apply to any Federal judge or magistrate judge in the district in which the property is located for an ex parte order restraining the property subject to forfeiture for not more than 30 days, except that the time may be extended for good cause shown at a hearing conducted in the manner provided in rule 43(e) of the Federal Rules of Civil Procedure. (2) Application The application for the restraining order shall set forth the nature and circumstances of the foreign charges and the basis for belief that the person arrested or charged has property in the United States that would be subject to forfeiture, and shall contain a statement that the restraining order is needed to preserve the availability of property for such time as is necessary to receive evidence from the foreign country or elsewhere in support of probable cause for the seizure of the property under this subsection. (b) Transfer (1) In general Whenever property is criminally forfeited under this chapter, the Attorney General or the Secretary of the Treasury, as the case may be, may transfer the forfeited personal property or the proceeds of the sale of any forfeited personal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property, if such a transfer— (A) has been agreed to by the Secretary of State; (B) is authorized in an international agreement between the United States and the foreign country; and (C) is made to a country which, if applicable, has been certified under section 490(b) of the Foreign Assistance Act of 1961. A decision by the Attorney General or the Secretary of the Treasury pursuant to this subsection shall not be subject to review. The foreign country shall, in the event of a transfer of property or proceeds of sale of property under this subsection, bear all expenses incurred by the United States in the seizure, maintenance, inventory, storage, forfeiture, and disposition of the property, and all transfer costs. The payment of all such expenses, and the transfer of assets pursuant to this paragraph, shall be upon such terms and conditions as the Attorney General or the Secretary of the Treasury may, in his discretion, set. (2) Rule of construction The provisions of this section shall not be construed as limiting or superseding any other authority of the United States to provide assistance to a foreign country in obtaining property related to a crime committed in the foreign country, including property which is sought as evidence of a crime committed in the foreign country. (c) Definitions For purposes of this section— (1) the term Attorney General (2) the term Secretary of the Treasury . (c) Civil forfeiture of fungible property Section 984 of title 18, United States Code, is repealed. (d) Civil forfeiture of real property Section 985 of title 18, United States Code, is repealed. (e) Access to records Section 986 of title 18, United States Code, is amended to read as follows: 986. Access to records in bank secrecy jurisdictions (a) In general In any ancillary proceeding in any criminal forfeiture case governed by section 413(n) of the Controlled Substances Act ( 21 U.S.C. 853(n) (1) financial records located in a foreign country may be material to any claim or to the ability of the Government to respond to such claim; and (2) it is within the capacity of the claimant to waive the claimant’s rights under applicable financial secrecy laws, or to obtain the records so that such records can be made available notwithstanding such secrecy laws, the refusal of the claimant to provide the records in response to a discovery request or to take the action necessary otherwise to make the records available shall be grounds for judicial sanctions, up to and including dismissal of the claim with prejudice. (b) Privilege This section shall not affect the right of the claimant to refuse production on the basis of any privilege guaranteed by the Constitution of the United States or any other provision of Federal law. . (f) Anti-Terrorist forfeiture protection Section 987 of title 18, United States Code, is repealed. (g) Conforming amendments The table of sections for chapter 46 (1) by amending the item related to section 981 to read as follows: 981. Forfeiture involving foreign countries. ; (2) by amending the item related to section 983 to read as follows: 983. Prohibiting civil forfeiture. ; (3) by striking the items related to sections 984 and 985; (4) by amending the item related to section 986 to read as follows: 986. Access to records in bank secrecy jurisdictions. ; and (5) by striking the item related to section 987. 102. Conforming amendments to the Controlled Substances Act (a) Criminal forfeitures Section 413 of the Controlled Substances Act ( 21 U.S.C. 853 (1) in subsection (i)(4), by striking provisions of section 511(e) of this title ( 21 U.S.C. 881(e) provisions of section 511(a) (2) in subsection (j)— (A) by amending the heading to read as follows: Applicability of forfeiture provisions (B) by striking Except (1) Except (C) by striking section 511(d) of this title ( 21 U.S.C. 881(d) paragraph (2) (D) by adding at the end the following: (2) The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this title, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this title by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer. ; and (3) in subsection (n)— (A) in paragraph (2)— (i) by striking pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, may (ii) by striking The hearing shall be held before the court alone, without a jury. (B) in paragraph (5), by striking the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine witnesses who appear at the hearing. the petitioner or counsel for the petitioner may testify and present evidence and witnesses, and cross-examine witnesses who appear at the hearing. Upon any showing by the petitioner or counsel for the petitioner that he has legal interest in property which has been ordered forfeited to the United States, there shall be established a rebuttable presumption that the order of forfeiture is invalid with respect to the petitioner’s interest in property. (C) in paragraph (6)— (i) in the matter preceding paragraph (A), by striking If, after the hearing, the court determines that the petitioner has established In the case that there has been established a rebuttable presumption that the order of forfeiture is invalid with respect to the petitioner’s interest in property, the Government may overcome such presumption if the Government establishes (ii) by amending subparagraph (A) to read as follows: (A) the defendant has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture valid in whole or in part because the right, title, or interest was vested in the defendant rather than the petitioner or was superior to any right, title, or interest of the petitioner at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or ; (iii) by amending subparagraph (B) to read as follows: (B) the petitioner is not a bona fide purchaser for value of the right, title, or interest in the property or, at the time of purchase, had cause to believe that the property was subject to forfeiture under this section. ; and (iv) in the matter following subparagraph (B)— (I) by striking the court After the hearing, the court (II) by inserting before the period at the end the following: , or, if the forfeited property has already been disposed of by the Government in accordance with law, order the Government to compensate the petitioner for an amount equal to the value of the petitioner’s interest in the property at the time the property was forfeited (D) in paragraph (7), by striking Following the court’s disposition of all petitions filed under this subsection, or if no such petitions are filed following the expiration of the period provided in paragraph (2) for the filing of such petitions 180 days after final publication or receipt of notice under paragraph (1) (E) by adding at the end the following: (8) (A) If a person with standing to contest the forfeiture of property under this subsection is financially unable to obtain representation by counsel, and the property subject to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of the person, shall ensure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim. (B) (i) At appropriate times during a representation under subparagraph (A), the Legal Services Corporation shall submit a statement of reasonable attorney fees and costs to the court. (ii) The court shall enter a judgment in favor of the Legal Services Corporation for reasonable attorney fees and costs submitted pursuant to clause (i) and treat such judgment as payable under section 2465 of title 28, United States Code, regardless of the outcome of the case. (C) The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title. . (b) Forfeitures Section 511 of the Controlled Substances Act ( 21 U.S.C. 881 (1) by striking subsections (a), (b), (c), and (d); (2) by redesignating subsection (e) as subsection (a); (3) in subsection (a)(1), as redesignated, by striking civilly or (4) by striking subsections (f), (g), (h), (i), and (j); and (5) by redesignating subsection (l) as subsection (b). II State Forfeiture 201. Findings; Sense of Congress (a) Findings Congress finds the following: (1) The Constitution authorizes and obligates each branch of the Federal Government to protect individual rights. (2) Congress is specifically authorized by the Fourteenth Amendment to provide remedies for States' violations of individual rights secured by the Constitution. (3) The Constitution secures the rights of individuals whom the Government seeks to punish for violating its laws. (4) The Government's use of in rem proceedings to forfeit property to punish legal violations without affording property owners the rights of criminal defendants plainly violates their constitutionally secured rights. (5) The Government's use of a legal tool at the time of the founding does not preclude its being incompatible with constitutionally secured rights. (6) The long-term failure of Congress, presidents, and the judiciary to recognize the illegitimacy of the Government's civil forfeiture practices does not divest them of the authority to do so. (7) The Government cannot lawfully jettison the rights of the accused for the sake of convenience and profit. (8) The early use of civil forfeiture in the United States was limited to admiralty and revenue contexts, in which the existence of a legal violation and the identity of the property used to effect it were often self-evident, and the owner of the property to be seized was often unobtainable. (9) Although the limitations on early civil forfeiture practices do not prevent those practices from being constitutionally infirm, they do materially distinguish the early practices from modern civil forfeiture. (10) The modern use of civil forfeiture by States is not limited to admiralty or revenue contexts, its reach extends far beyond property used to commit an offense, and it is used often to supplement, rather than recover, the Government's revenues. (11) Civil forfeiture statutes and precedents incorporate certain protections for property owners that, although limited, erode the nature of the proceedings as truly in rem and betray the punitive character of civil forfeiture. (12) The tortured status of civil forfeiture in current law, in which the fiction of the property as the defendant is sustained, yet the interests of property owners are, to a limited extent, nonetheless recognized, is the inevitable result of grandfathering civil forfeiture into a constitutional system that otherwise secures the rights of the accused. (b) Sense of Congress It is the sense of Congress that the Constitution authorizes and obligates Congress to prohibit the use of civil asset forfeiture by the States. 202. State civil asset forfeiture (a) In general Property owned by a person may be forfeited to a State pursuant to a civil proceeding only after— (1) criminal conviction of such person for violation of State criminal law; or (2) a civil proceeding in which— (A) the State proves that the person who owns the property has committed the offense giving rise to forfeiture; and (B) the person who owns such property is entitled to all rights applicable to criminal defendants under the Constitution, including the right to be represented by counsel and the right to trial by jury. (b) Federal cause of action A person aggrieved by a violation of subsection (a) may bring a civil action against the State in the appropriate Federal district court for relief, including return of forfeited property and enforcement of the procedures described in subsection (a). 203. Effective date This Act and the amendments made by this Act shall apply with respect to— (1) forfeiture proceedings occurring on or after the date of enactment of this Act; and (2) forfeiture proceedings pending on or after such date.

Summary: Civil Asset Forfeiture Elimination Act This bill prohibits federal civil asset forfeiture and imposes restrictions on state civil asset forfeiture. Specifically, property belonging to a person may be forfeited to a state government pursuant to a civil proceeding only after (1) a criminal conviction of the property owner under state criminal law; or (2) the state, in a civil proceeding where the property owner has the same constitutional rights provided to criminal defendants, proves that the property owner has committed the offense giving rise to the forfeiture.