News Release ~ 06/23/1997

Measure to Restrict Government Seizure Power Further Compromises Citizens' Rights

Messed-up Forfeiture "Reform"

Washington, DC (June 23, 1997) -- After careful review, the National Association of Criminal Defense Lawyers rejects the important but severely flawed civil asset reform effort reported out of the House Judiciary Committee late last week. The measure purports to address the basic unfairness and inequities of existing asset forfeiture laws, but what was at first an outstanding bill with widespread bi-partisan support in the House has been seriously compromised by the U.S. Department of Justice and other law enforcement entities who unfairly benefit from these laws at the expense of innocent citizens.

"These agencies have a direct financial stake in civil forfeiture abuse," said NACDL President-Elect Gerald B. Lefcourt. "Law enforcement agencies have been unjustly enriching themselves by appropriating property belonging to innocent citizens and subjecting the owners to arcane Alice-in-Wonderland legal hurdles which make recovery of the property by the rightful owner hugely expensive, if not impossible. The so-called reform measure reported out late last week in many respects expands rather than contracts the kind of confiscatory governmental powers the bill's sponsors sought to eliminate."

The single most important reform would be to shift the burden of proof back to the government to prove that any seizure of property was lawful and proper. Turning the traditional presumption of innocence on its head, current law imposes on the citizen whose property is seized the burden of proving that he is entitled to its return. While H.R. 1965 purports to change that, a number of "poison pill" provisions insisted upon by the Justice Department undermine the bill's essential purpose.

As reported out, H.R. 1965 is worse than no bill at all. NACDL communicated as much in a June 17, 1997 letter to House Judiciary Committee Chairman Henry Hyde and Ranking Member John Conyers. In particular, the Justice Department wants to use the pretext of civil forfeiture reform to gain drastic new authority under the criminal forfeiture statutes. Additionally, DOJ now wants the power to seize property and file a forfeiture complaint without probable cause to believe the property is forfeitable, and then impose costly discovery burdens on citizens to try and develop a case during the pretrial stages. Seizure of such property without probable cause is currently prohibited by law and by the Fourth Amendment to the Bill of Rights.

Those concerns were also expressed by several key members of the Judiciary Committee at the June 20 mark-up. In its haste, however, the Committee reported out the bill without correcting those fundamental flaws.

The original civil forfeiture reform bill, sponsored by Chairman Hyde, Ranking Member Conyers, Rep. Bob Barr (R-GA), Rep. Barney Frank (D-MA), and others, enjoyed the bi-partisan support of a broad and diverse group of concerned citizens and organizations, including the American Civil Liberties Union; Roger Pilon, Director of Constitutional Studies at the Cato Institute; the Institute for Justice; and the NACDL itself.

In its current form, H.R. 1965 falls far short of the reform needed, and indeed, actually expands opportunities for future forfeiture abuse. No wonder H.R.. 1965 as now written is actively supported by the U.S. Department of Justice, while leaving many of its original supporters wondering why fundamental reforms were so severely compromised.

NACDL's June 17 letter to Chairman Henry Hyde can be found on the Association's website, 

NACDL's Follow-up, July 28 letter to Chairman Hyde can be found at 

NACDL testimony in support of the original reform bill can be found at  

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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