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.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8997 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 8997
To eliminate civil asset forfeiture, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 17, 2020
Mr. Amash introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on Energy
and Commerce, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To eliminate civil asset forfeiture, 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 ``Civil Asset Forfeiture Elimination
Act''.
TITLE I--FEDERAL FORFEITURE
SEC. 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:
``Sec. 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:
``Sec. 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' means the Attorney
General or his delegate; and
``(2) the term `Secretary of the Treasury' means the
Secretary of the Treasury or his delegate.''.
(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:
``Sec. 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)), in which--
``(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 of
title 18, United States Code, is amended--
(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.
SEC. 102. CONFORMING AMENDMENTS TO THE CONTROLLED SUBSTANCES ACT.
(a) Criminal Forfeitures.--Section 413 of the Controlled Substances
Act (21 U.S.C. 853) is amended--
(1) in subsection (i)(4), by striking ``provisions of
section 511(e) of this title (21 U.S.C. 881(e))'' and inserting
``provisions of section 511(a)''; and
(2) in subsection (j)--
(A) by amending the heading to read as follows:
``Applicability of Forfeiture Provisions'';
(B) by striking ``Except'' and inserting ``(1)
Except'';
(C) by striking ``section 511(d) of this title (21
U.S.C. 881(d))'' and inserting ``paragraph (2)''; and
(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,''
and inserting ``may''; and
(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.'' and inserting ``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'' and inserting ``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'' and
inserting ``After the hearing, the
court''; and
(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'' and inserting ``180
days after final publication or receipt of notice under
paragraph (1)''; and
(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) is amended--
(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).
TITLE II--STATE FORFEITURE
SEC. 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.
SEC. 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).
SEC. 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.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
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