WASHINGTON - Today, the Subcommittee on Civil Rights and Civil Liberties held a hearing to examine the need for civil asset forfeiture reform. In her opening statement, Subcommittee Ranking Member Nancy Mace (R-S.C.) emphasized civil asset forfeiture creates a “seize-first, ask questions later" incentive for authorities and too often subverts an individual’s right of due process.
When an asset is seized, she described the difficulty owners have navigating complicated legal proceedings to reacquire their property, noting it often costs well more for an attorney than the seized assets are worth. Subcommittee Ranking Member Mace also highlighted situations where small business owners around America have been negatively impacted by civil asset forfeiture and championed the need for commonsense reforms. She concluded by stating Congress should seriously debate and guarantee an American’s right to a quick hearing where the government must show cause for why the property was seized.
Below are Subcommittee on Civil Rights and Civil Liberties Ranking Member Mace’s remarks as prepared for delivery.
Thank you, Chairman Raskin.
I thank the Chairman for holding today’s hearing on a question that couldn’t be more important to the American People or fundamental to our nation’s identity: the ability of the people to be secure in their property.
The writers of our country’s Declaration of Independence held several truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, and that among those are Life, Liberty and the pursuit of Happiness.
And our Constitution guaranteed those rights explicitly in the text. The Fifth Amendment prohibits the federal government from depriving persons of “life, liberty, or property, without due process of law…". Likewise, the Fourteenth Amendment prohibits the states from depriving any person “of life, liberty, or property, without due process of law…"
But Civil Asset Forfeiture too often creates an end-run around this Constitutional guarantee of due process. Too often, civil asset forfeiture creates a “seize-first, ask questions later" incentive for the authorities. It is a right and proper goal to prevent criminals from continuing to use their property in the commission of criminal offenses, or to enjoy the property derived from illegal activity. Asset forfeiture pursuant to a criminal charge and conviction is a sound means of ensuring that criminals do not benefit from the proceeds of their crimes, and defendants must be proven guilty beyond a reasonable doubt.
Yet, in the case of civil asset forfeiture, there is no requirement that the property owner be convicted of a crime, let alone charged with any offense.
Civil asset forfeiture is an action against the property, and those property owners who have their assets seized have no guarantee to an attorney to help them navigate a complicated legal proceeding to contest the forfeiture in a proceeding in which the government has a very low burden of proof.
In fact, it often costs well more for an attorney than the seized assets are worth, leading many forfeiture actions to go uncontested.
Many innocent activities have led to authorities seizing assets, which are then very difficult to get back through a contested civil asset forfeiture proceeding.
Small business owners have been wrongly accused of “structuring," which is the practice of depositing or withdrawing slightly less than $10,000 to avoid bank reporting laws. Even though there are myriad number of innocent reasons to deposit $9,000 in the bank.
Those affected have had their entire bank accounts seized, tying up all of their operating capital for months, if not years in a complicated legal proceeding. All without ever being charged with a crime.
Others have had their life savings confiscated by the government merely for carrying large amounts of cash. Again, without being charged with any criminal offense.
A report by the Institute for Justice shows that the median cash seizure in the states is only about $1,300, well below the amount of money it would cost to hire an attorney to contest the forfeiture. It’s simple economics to understand why many of these actions go uncontested.
This is a real problem in our country, and one that Congress should seriously debate and consider reforming. I’m not necessarily advocating ending civil asset forfeiture altogether, but certainly there are simple and commonsense reforms that we could all get behind to restore the Constitution’s guarantee of due process.
For example, it should be easier for pro se litigants representing themselves to navigate and contest a forfeiture action.
We should guarantee their right to a quick hearing where the government must show cause for why the property was seized in the first place.
And we should consider whether it is proper for funds to be returned directly to the authorities seizing those funds in the first place, or whether those funds should be deposited in the general treasury, if not returned directly to victims and affected communities.
I look forward from hearing from the witnesses today about the scope of the problem and what we could be doing as legislators to solve it.
Thank you, Mr. Chairman, and I yield back.
