CIVIL ASSET FORFEITURE REFORM ACT OF 2000Americans who purchase an airline ticket with cash have been suspect even prior to the terrorist attacks of 9-11-01. People spending large amounts of cash have fit the profile of a drug courier for several years. As a result of that "profiling" suspects are sometimes detained and searched. Even where no drugs are found, the agents have often seized any cash they find, saying they have "probable cause" to believe that the person intended to buy drugs with the money. Although the "suspect is allowed to leave and are never charged with any crime, the agents keep the cash. To get it back the suspect has had to prove that they did not intend to use the money to buy drugs. Even worse, imagine that police discover marijuana plants growing or in your rental property and they lock it up and seize it. While you are fighting a costly legal battle to recover your property, neither you nor the p olice department pay to continue insurance coverage, and your home burns to the ground. Only later do they discover that a neighbor is the party responsible for cultivating the drug crop. When you are finally able to reclaim your property, you discover that the police had no duty to maintain it while in their possession, and you are unable to sue for damages. By government estimates, over $500 million worth of property was confiscated in 1999. Horror stories like those above are the reason for passage of Public Law 106-185, effective April 25, 2000, entitled the Civil Asset Forfeiture Reform Act of 2000. Th is Act creates a number of safeguards when assets are seized for the well-intentioned reasons of reducing criminal profit and returning it to the law-abiding community. Burden of Proof Under previous forfeiture law, the property owner, rather than the government, bore the burden of proof. The government simply had to show probable cause that the property was "guilty" and subject to forfeiture, and it was up to the property owner to then prove a negative-that the property was not involved in any wrongdoing. In other words, the owner was presumed guilty until he could prove he was innocent, and the government did not have to provide proof beyond a reasonable doubt-the standard that generally prevails in criminal cases. The Act shifts the burden of proof to the government and raises the legal standard for seizures before a conviction. Simply put, the government must now show by a "preponderance of evidence" a substantial connection between seized property and a crime. Innocent Owner Defense The government must now inform people of its intent to seize their property. A property may not be seized if the owner can prove by a preponderance of evidence that they were unaware of any illegal conduct or, upon learning of the illegal conduct, did all that could reasonably be expected to terminate the illegal conduct on the property. By way of example, reasonable steps by a landlord include telling the local law enforcement agency about a tenant's illegal activities and seeking eviction of the tenant. If an innocent owner has a partial interest in property subject to forfeiture tenancy by entirety for example-a court may sever the property interest, transfer ownership to the government with a provision that the innocent owner be compensated, or permit the innocent owner to keep the property subject to a lien in favor of the government to the extent of the forfeited interest. Elimination of the Cost-Bond Requirement Under previous law, a property owner who sought to recover his property after seizure had to pay for the privilege by posting a 10 percent cost-bond with the court, despite the fact that no other federal or state statute requires such a bond in civil forfeiture cases. The government has in the past defended the bond requirement as being a deterrent to frivolous claims. Even if a property owner prevailed in an action, the government was not liable for any interest on the bond he paid. The new legislation eliminates the cost-bond requirement entirely, but provides for a civil fine where a court determines a claimant's assertion is frivolous. Appointment of Counsel for Indigents Not surprisingly, a person whose assets are seized by the government is often indigent as a result. A court is now permitted to authorize legal counsel to represent an indigent claimant if a court-appointed attorney already represents the claimant in connection with a related federal criminal case. Also, an indigent person is entitled to representation by the Legal Services Corporation-paid for by the government-when the government seeks to forfeit the claimant's primary residence. Claim-Filing Extension Previously, a property owner who wanted to challenge forfeiture had only 10 days to file a claim following notice of the government's intent to seize property. The new time frame is 30 days. Release of Property in Hardship Cases A property owner may now retain possession of his property pending the final disposition of his case if he can prove that possession by the government will cause substantial hardship-for example the seizure of a primary residence that will leave the claimant homeless, or of a business that will prevent the claimant from earning a living. To do so, however, the claimant must have sufficient ties to the community so as to ensure that the property will be available at the time of trial, and the hardship outweighs the risk that the property will be destroyed or concealed pending court proceedings. Recovery of Attorney Fees and Damages A claimant who prevails in an action and is not represented by court appointed counsel may recover reasonable attorney fees and costs of litigation. The government is also liable for post judgment interest on any money judgment and, in some circumstances, imputed interest when the seized property involves currency or negotiable instruments. Further, a claimant may file a damage action against the government if the seized property is harmed due to handling or storage while under government control.
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