Title: DUE PROCESS Act of 2020
Policy area: Crime and Law Enforcement

Summary:
Deterring Undue Enforcement by Protecting Rights Of Citizens from Excessive Searches and Seizures Act of 2020 or the DUE PROCESS Act of 2020
This bill makes various changes to procedures governing federal civil forfeiture cases, including by raising the evidentiary standard that applies to them. It also requires the Department of Justice to create a database of and annually audit federal civil forfeiture cases.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4861 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 4861

  To amend title 18, United States Code, to reform certain forfeiture 
                  procedures, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             October 26 (legislative day, October 19), 2020

 Mr. Grassley (for himself, Mr. Leahy, Mr. Crapo, and Mrs. Feinstein) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend title 18, United States Code, to reform certain forfeiture 
                  procedures, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Deterring Undue Enforcement by 
Protecting Rights Of Citizens from Excessive Searches and Seizures Act 
of 2020'' or the ``DUE PROCESS Act of 2020''.

SEC. 2. GENERAL RULES FOR CIVIL FORFEITURE PROCEEDINGS.

    Section 983(a) of title 18, United States Code, is amended--
            (1) in the subsection heading, by striking ``Complaint'' 
        and inserting ``Complaint; Initial Hearing'';
            (2) in paragraph (1)--
                    (A) in subparagraph (A)--
                            (i) in clause (i)--
                                    (I) by striking ``60 days'' and 
                                inserting ``30 days''; and
                                    (II) by striking ``clauses (ii) 
                                through (v)'' and inserting ``clauses 
                                (iii) and (iv)'';
                            (ii) by striking clause (ii);
                            (iii) by redesignating clauses (iii) 
                        through (v) as clauses (ii) through (iv), 
                        respectively;
                            (iv) in clause (ii), as so redesignated--
                                    (I) in the matter preceding 
                                subclause (I)--
                                            (aa) by striking ``60-day'' 
                                        and inserting ``30-day''; and
                                            (bb) by striking ``does not 
                                        file'' and all that follows 
                                        through ``obtain'' and 
                                        inserting ``obtains''; and
                                    (II) in subclause (I), by striking 
                                ``60 days'' and inserting ``30 days'';
                            (v) in clause (iii), as so redesignated, by 
                        striking ``90 days'' and inserting ``60 days'';
                            (vi) in clause (iv), as so redesignated, by 
                        striking ``60 days'' and inserting ``30 days''; 
                        and
                            (vii) by adding at the end the following:
            ``(v) The notice under this subparagraph shall include an 
        address, which shall also be widely published, at which the 
        seizing agency can receive until 5 p.m. on any business day an 
        interested party's claim contesting a seizure or forfeiture. 
        The interested party may send such a claim to that address by 
        courier or overnight mail. For the purpose of determining 
        compliance with any deadlines in filing such a claim, an 
        interested party completes the filing by placing the 
        communication making the claim in the control of an independent 
        third-party delivery service such as a courier company or the 
        United States mail. In determining whether any legal deadline 
        for the filing of such a claim has been met, a court shall 
        allow for the equitable tolling of the deadline in appropriate 
        cases.
            ``(vi) The seizing agency shall make publicly available for 
        each nonjudicial forfeiture, with respect to which a request 
        for mitigation or remission is made, a statement of the 
        agency's disposition of that request, redacted if necessary, 
        including the reasons for the decision.'';
                    (B) in subparagraph (C)--
                            (i) by striking ``60'' and inserting 
                        ``30''; and
                            (ii) by striking ``which period may'' and 
                        all that follows through ``as necessary,'';
                    (C) by adding at the end the following:
            ``(G) Any notice described in subparagraph (A) that is 
        provided to a party shall include notice of--
                    ``(i) the right of the party to request an initial 
                hearing in accordance with paragraph (5);
                    ``(ii) the right of the party to be represented by 
                counsel at the initial hearing described in clause (i) 
                and any civil forfeiture proceeding under a civil 
                forfeiture statute; and
                    ``(iii) the right of the party to request that the 
                party be represented by counsel at the initial hearing 
                described in clause (i) and any civil forfeiture 
                proceeding under a civil forfeiture statute if the 
                party meets the requirements described in subsection 
                (b).''; and
                    (D) by striking ``nonjudicial'' each place the term 
                appears;
            (3) in paragraph (2)--
                    (A) in subparagraph (A), by striking 
                ``nonjudicial''; and
                    (B) in subparagraph (B)--
                            (i) by striking ``35 days'' and inserting 
                        ``65 days''; and
                            (ii) by striking ``30 days'' and inserting 
                        ``60 days'';
            (4) by striking paragraph (3)(A), by striking subparagraph 
        (A) and inserting the following:
    ``(3)(A) Not later than 90 days after a claim has been filed, the 
Government shall file a complaint for forfeiture in the manner set 
forth in the Supplemental Rules for Certain Admiralty and Maritime 
Claims or return the property pending the filing of a complaint, except 
that a court in the district in which the complaint has been filed may 
extend the period for filing a complaint upon agreement of the 
parties.''; and
            (5) by adding at the end the following:
            ``(5)(A) A party claiming property seized in a civil 
        forfeiture proceeding under a civil forfeiture statute may 
        request, not later than 30 days after the date on which a 
        notice described in paragraph (1)(A) is received or if notice 
        is not received, not later than 30 days after the date of final 
        publication of notice of seizure, an initial hearing to take 
        place before a magistrate judge in the appropriate United 
        States district court not later than the date on which a civil 
        forfeiture proceeding under a civil forfeiture statute relating 
        to the seized property commences.
            ``(B) If a party makes a request under subparagraph (A), a 
        magistrate judge shall conduct an initial hearing not later 
        than 10 days after the date on which the request is made.
            ``(C) At the initial hearing--
                    ``(i) the magistrate judge shall--
                            ``(I) inform the party in easily understood 
                        terms of--
                                    ``(aa) the right of the party to be 
                                represented by counsel at the initial 
                                hearing and any civil forfeiture 
                                proceeding under a civil forfeiture 
                                statute;
                                    ``(bb) the right of the party to 
                                request that the party be represented 
                                by counsel at the initial hearing and 
                                any civil forfeiture proceeding under a 
                                civil forfeiture statute if the 
                                magistrate judge finds that the party 
                                meets the requirements described in 
                                subsection (b);
                                    ``(cc) sufficiently detailed facts 
                                regarding the seizure of the property 
                                if the property was seized pursuant to 
                                a warrant described in the matter 
                                preceding subparagraph (A) of section 
                                981(b)(2); and
                                    ``(dd) the right of the party to 
                                challenge the lawfulness of the seizure 
                                of the property, including on the 
                                grounds that at the time the property 
                                was seized--
                                            ``(AA) if the property was 
                                        seized pursuant to a warrant 
                                        described in the matter 
                                        preceding subparagraph (A) of 
                                        section 981(b)(2), the warrant 
                                        was not supported by probable 
                                        cause; or
                                            ``(BB) if the property was 
                                        seized without a warrant 
                                        described in subitem (AA), none 
                                        of the exceptions described in 
                                        subparagraphs (A) and (B) of 
                                        section 981(b)(2) apply to the 
                                        seizure of the property; and
                            ``(II) if the party meets the requirements 
                        described in subsection (b), authorize counsel 
                        to represent the party or insure that the party 
                        is represented by an attorney for the Legal 
                        Services Corporation, as applicable, in 
                        accordance with that subsection; and
                    ``(ii) the burden of proof is on the Government to 
                establish that at the time the property was seized--
                            ``(I) if the property was seized pursuant 
                        to a warrant described in the matter preceding 
                        subparagraph (A) of section 981(b)(2), the 
                        warrant was supported by probable cause; or
                            ``(II) if the property was seized without a 
                        warrant described in subclause (I)--
                                    ``(aa) sufficiently detailed facts 
                                regarding the seizure of the property; 
                                and
                                    ``(bb) an exception described in 
                                subparagraph (A) or (B) of section 
                                981(b)(2) applies to the seizure of the 
                                property.
            ``(D) The magistrate judge shall enter an order for the 
        immediate release of the seized property with prejudice to the 
        right of the Government to commence a civil forfeiture 
        proceeding at a later time if the magistrate judge finds that--
                    ``(i) the requirements described in subparagraphs 
                (A) through (E) of subsection (f)(1) are met; and
                    ``(ii) the Government did not meet the burden of 
                proof described in subparagraph (C)(ii).''.

SEC. 3. REPRESENTATION.

    Section 983(b) of title 18, United States Code, is amended--
            (1) in paragraph (1)(A), by striking ``judicial''; and
            (2) in paragraph (2)(A), by striking ``judicial civil 
        forfeiture proceeding under a civil forfeiture statute 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'' and inserting 
        ``civil forfeiture proceeding under a civil forfeiture statute 
        is financially unable to obtain representation by counsel''.

SEC. 4. BURDEN OF PROOF.

    Section 983(c) of title 18, United States Code, is amended--
            (1) in paragraph (1), by striking ``a preponderance of the 
        evidence'' and inserting ``clear and convincing evidence''; and
            (2) in paragraph (2), by striking ``a preponderance of the 
        evidence'' and inserting ``clear and convincing evidence''.

SEC. 5. RIGHT TO REQUEST HEARING ON PRETRIAL RESTRAINT OF PROPERTY TO 
              RETAIN COUNSEL OF CHOICE.

    (a) Title 18.--Section 1963 of title 18, United States Code, is 
amended--
            (1) by striking subsection (d)(1) and inserting the 
        following:
    ``(d)(1)(A) Upon application of the United States, the court may 
enter a restraining order or injunction, require the execution of a 
satisfactory performance bond, or take any other action to preserve the 
availability of property described in subsection (a) for forfeiture 
under this section--
            ``(i) upon the filing of an indictment or information 
        charging a violation of section 1962 and alleging that the 
        property with respect to which the order is sought would, in 
        the event of conviction, be subject to forfeiture under this 
        section; or
            ``(ii) prior to the filing of such an indictment or 
        information, if, after notice to persons appearing to have an 
        interest in the property and opportunity for a hearing, the 
        court determines that--
                    ``(I) there is a substantial probability that the 
                United States will prevail on the issue of forfeiture 
                and that failure to enter the order will result in the 
                property being destroyed, removed from the jurisdiction 
                of the court, or otherwise made unavailable for 
                forfeiture; and
                    ``(II) the need to preserve the availability of the 
                property through the entry of the requested order 
                outweighs the hardship on any party against whom the 
                order is to be entered.
    ``(B)(i) Upon motion of a defendant charged with a violation of 
section 1962 for which criminal forfeiture may be ordered under this 
section, supported by an affidavit, the court shall hold a hearing to 
determine whether to modify or rescind, in whole or in part, an order 
entered under subparagraph (A) to allow the defendant to use the 
property subject to the order to retain counsel of choice.
    ``(ii) At the hearing, the court shall consider--
            ``(I) the weight of the evidence against the defendant with 
        respect to the violation of section 1962 for which criminal 
        forfeiture may be ordered under this section;
            ``(II) the weight of the evidence with respect to whether 
        the property will be subject to forfeiture under this section;
            ``(III) the history and characteristics of the defendant; 
        and
            ``(IV) the nature and circumstances of the case.
    ``(C) An order entered pursuant to subparagraph (A)(ii) shall be 
effective for not more than 90 days, unless--
            ``(i) extended by the court for good cause shown; or
            ``(ii) an indictment or information described in 
        subparagraph (A)(i) has been filed.''; and
            (2) in subsection (d)(2), by inserting ``that the defendant 
        committed a violation of section 1962 for which criminal 
        forfeiture may be ordered under this section and probable cause 
        to believe'' after ``believe''.
    (b) Controlled Substances Act.--Section 413 of the Controlled 
Substances Act (21 U.S.C. 853) is amended--
            (1) by striking subsection (e)(1) and inserting the 
        following:
    ``(e)(1)(A) Upon application of the United States, the court may 
enter a restraining order or injunction, require the execution of a 
satisfactory performance bond, or take any other action to preserve the 
availability of property described in subsection (a) for forfeiture 
under this section--
            ``(i) upon the filing of an indictment or information 
        charging a violation of this title or title III for which 
        criminal forfeiture may be ordered under this section and 
        alleging that the property with respect to which the order is 
        sought would, in the event of conviction, be subject to 
        forfeiture under this section; or
            ``(ii) prior to the filing of such an indictment or 
        information, if, after notice to persons appearing to have an 
        interest in the property and opportunity for a hearing, the 
        court determines that--
                    ``(I) there is a substantial probability that the 
                United States will prevail on the issue of forfeiture 
                and that failure to enter the order will result in the 
                property being destroyed, removed from the jurisdiction 
                of the court, or otherwise made unavailable for 
                forfeiture; and
                    ``(II) the need to preserve the availability of the 
                property through the entry of the requested order 
                outweighs the hardship on any party against whom the 
                order is to be entered.
    ``(B)(i) Upon motion of a defendant charged with a violation of 
section 401 for which criminal forfeiture is ordered under this 
section, supported by an affidavit sufficient to demonstrate a genuine 
need for the defendant to use the property subject to an order entered 
under subparagraph (A) to retain counsel of choice, the court shall 
hold a hearing to determine whether to modify or rescind, in whole or 
in part, the order to allow the defendant to use the property to retain 
counsel of choice.
    ``(ii) At the hearing, the court shall consider--
            ``(I) the weight of the evidence against the defendant with 
        respect to the violation of this title or title III for which 
        criminal forfeiture may be ordered under this section;
            ``(II) the weight of the evidence with respect to whether 
        the property is subject to forfeiture under this section;
            ``(III) the history and characteristics of the defendant; 
        and
            ``(IV) the nature and circumstances of the case.
    ``(C) An order entered pursuant to subparagraph (A)(ii) shall be 
effective for not more than 90 days, unless--
            ``(i) extended by the court for good cause shown; or
            ``(ii) an indictment or information described in 
        subparagraph (A)(i) has been filed.''; and
            (2) in subsection (e)(2), by inserting ``that the defendant 
        committed a violation of this title or title III for which 
        criminal forfeiture may be ordered under this section and 
        probable cause to believe'' after ``believe''.

SEC. 6. RECOVERY OF ATTORNEYS FEES.

    Section 2465(b) of title 28, United States Code, is amended--
            (1) in paragraph (1), in the matter preceding subparagraph 
        (A), by striking ``substantially''; and
            (2) by adding at the end the following:
    ``(3) If the claim is resolved by a settlement in which the 
claimant prevails, the claimant is entitled to attorneys fees under 
this subsection to the same extent that the claimant would be if a 
judgment were issued in the proceeding for the property recovered under 
the settlement. The payment of attorneys fees under this subsection may 
not be waived as a part of any settlement with the claimant. That 
payment is not subject to any offset or deduction by the United States 
in connection with any claim the United States may have against the 
claimant.
    ``(4) For the purposes of this subsection, a claimant prevails if 
the claimant recovers more than 50 percent, by value, of the money or 
other property that is claimed.''.

SEC. 7. ANNUAL AUDIT OF CIVIL FORFEITURES.

    (a) In General.--The Inspector General of the Department of Justice 
shall annually conduct an audit of a representative sample of Federal 
civil forfeitures under statutes described in section 983(i) of title 
18, United States Code, to ensure those forfeitures comply with the 
Constitution of the United States and all other applicable Federal 
laws.
    (b) Report.--The Inspector General of the Department of Justice 
shall submit to the Attorney General and to Congress a report on the 
results of the audit required under subsection (a), which shall include 
the fiscal status of the Department of Justice Assets Forfeiture Fund 
and Treasury Forfeiture Fund, including any projected growth or 
reduction of amounts in the funds in future years, and the viability of 
the funds.

SEC. 8. PUBLICLY AVAILABLE DATABASES.

    (a) Quarterly Updated Database on Details of Forfeitures.--The 
Attorney General shall establish and maintain, with updates on a 
quarterly basis, a publicly available database that describes with 
respect to seizures for all Federal civil forfeiture containing the 
following:
            (1) For each such seizure:
                    (A) Unit of an agency responsible for the seizure, 
                and the location, including at a minimum the State, 
                city, and judicial district where and date when the 
                seizure took place.
                    (B) The type of initial seizure (such as during a 
                stop based on probable cause, or pursuant to a Federal 
                warrant).
                    (C) The nature and value of the seized property.
                    (D) In what manner forfeiture of seized property 
                was conducted (whether by a civil or administrative 
                proceeding, through settlement, or otherwise).
                    (E) Whether a forfeiture of the seized property was 
                of the entire property, or only a part, and if partial, 
                the proportion of the whole that was forfeited.
                    (F) The disposition of the seized property, the 
                date of forfeiture, if any, and the date the 
                disposition took place.
                    (G) What type of criminal activity any forfeited 
                property relates to.
                    (H) Whether any forfeited money was returned to the 
                victim of a crime in connection with which the 
                forfeiture occurred, and the amount returned.
                    (I) The status of any concurrent or related 
                criminal proceeding against the owner of the property, 
                any pending case under title 11, United States Code, in 
                which the owner of record of the property is the 
                debtor, and any pending civil case in which a receiver 
                has been ordered to take control of the property.
                    (J) Whether the forfeiture was contested.
                    (K) Whether the innocent owner made a claim on the 
                property.
                    (L) The total expenses associated with the 
                forfeiture.
                    (M) The total net proceeds of the forfeiture.
                    (N) Demographic information on the person or 
                persons subject to the seizure.
            (2) A statistical breakdown for each agency of the cases of 
        remission and mitigation, including--
                    (A) the number of requests for remission and 
                mitigation that were--
                            (i) fully granted;
                            (ii) partially granted; or
                            (iii) returned; and
                    (B) with respect to requests that were partially 
                granted--
                            (i) the average percentage of the value of 
                        seized property that was returned to the owner; 
                        and
                            (ii) what percentage of requests resulted 
                        in--
                                    (I) less than 25 percent of the 
                                property returned;
                                    (II) not less than 25 percent and 
                                less than 50 percent of the property 
                                returned;
                                    (III) not less than 50 percent and 
                                less than 75 percent of the property 
                                returned; and
                                    (IV) not less than 75 percent of 
                                the property returned.
            (3) Any money given from the Department of Justice Asset 
        Forfeiture Fund or Treasury Forfeiture Fund to State or local 
        law enforcement for joint law enforcement operations funding, 
        or for any other purpose, and the name of the State or local 
        entity receiving that funding.
    (b) Real-Time Database To Assist Persons Whose Property Is 
Seized.--
            (1) Establishment.--The Attorney General shall establish 
        and maintain, with updates on a real-time basis, a database, 
        organized by State and county, with respect to each Federal 
        seizure of real and personal property for Federal civil 
        forfeiture under statutes described in section 983(i) of title 
        18, United States Code.
            (2) Design.--The Attorney General shall design the database 
        to allow any interested party, including any owner, creditor, 
        or lienholder, to determine whether that party has an interest 
        in any such property and to inform that party, and the general 
        public, on the specifics of how to contest each seizure before 
        the forfeiture.
    (c) Heads of Agencies To Submit Information for Databases.--Not 
less frequently than quarterly, on a schedule determined by the 
Attorney General, the head of each Federal agency shall submit to the 
Attorney General a report that provides, in such form as the Attorney 
General may prescribe, the information the Attorney General is required 
to include in the databases established under this section.

SEC. 9. STANDARD OF PROOF RELATING TO POSSIBLY INNOCENT OWNERS.

    (a) Burden of Proof.--Section 983(c) of title 18, United States 
Code, is amended by striking paragraph (3) and inserting the following:
            ``(3) if the Government's theory of forfeiture is that the 
        property was used to commit or facilitate the commission of a 
        criminal offense, or was involved in the commission of a 
        criminal offense, the Government shall establish by clear and 
        convincing evidence that--
                    ``(A) there was a substantial connection between 
                the property and the offense; and
                    ``(B) the owner of any interest in the seized 
                property--
                            ``(i) intentionally used the property in 
                        connection with the offense;
                            ``(ii) knowingly consented to the use of 
                        the property by another in connection with the 
                        offense; or
                            ``(iii) knew that the property was being 
                        used in connection with the offense.''.
    (b) Innocent Owner Defense.--Section 983(d) of title 18, United 
States Code, is amended--
            (1) by striking paragraph (1) and inserting the following:
            ``(1) An innocent owner's interest in property shall not be 
        forfeited under any civil forfeiture statute. The Government 
        shall have the burden of proving that the claimant is not an 
        innocent owner by clear and convincing evidence.''; and
            (2) in paragraph (2)(A)(i), by inserting ``or consent to'' 
        after ``know of''.

SEC. 10. PROPORTIONALITY.

    Section 983(g) of title 18, United States Code, is amended--
            (1) in paragraph (1), by inserting ``or otherwise 
        disproportional to the gravity of the offense'' before the 
        period at the end; and
            (2) by striking paragraph (2) and inserting the following:
            ``(2) In making this determination, the court shall 
        consider, in addition to the analysis as to whether the 
        forfeiture is constitutionally excessive, the value of the 
        property, the seriousness of the offense, the level of the 
        claimant's culpability in the offense giving rise to 
        forfeiture, the claimant's prior record, the claimant's 
        financial condition, and whether the forfeiture statute is 
        intended to address the type of conduct alleged as the basis 
        for forfeiture.''.

SEC. 11. SEARCH AND FORFEITURE OF MONETARY INSTRUMENTS.

    Section 5317(c) of title 31, United States Code, is amended by 
striking paragraph (2) and inserting the following:
            ``(2) Civil forfeiture.--
                    ``(A) In general.--Any property involved in a 
                violation of section 5313 or 5316, or any conspiracy to 
                commit any such violation, and any property traceable 
                to any such violation or conspiracy, may be seized and 
                forfeited to the United States in accordance with the 
                procedures governing civil forfeitures in money 
                laundering cases pursuant to section 981(a)(1)(A) of 
                title 18.
                    ``(B) Structuring.--Any property involved in a 
                violation of section 5324, or any conspiracy to commit 
                any such violation, and any property traceable to any 
                such violation or conspiracy, may be seized and 
                forfeited to the United States in accordance with the 
                procedures governing civil forfeitures in money 
                laundering cases pursuant to section 981(a)(1)(A) of 
                title 18 only if the property to be seized and 
                forfeited is derived from an illegal source or if the 
                structuring offense was used to conceal violations of 
                other criminal laws.''.

SEC. 12. APPLICABILITY.

    This Act and the amendments made by this Act shall apply only with 
respect to seizures made on or after the date of enactment of this Act.
                                 <all>