This is a pretty big deal, especially if Sen. Rand Paul (R-Ky.) can round up enough co-sponsors to build some momentum.
Sen. Rand Paul yesterday introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which would protect the rights of citizens and restore the Fifth Amendment’s role in seizing property without due process of law. Under current law, law enforcement agencies may take property suspected of involvement in crime without ever charging, let alone convicting, the property owner. In addition, state agencies routinely use federal asset forfeiture laws; ignoring state regulations to confiscate and receive financial proceeds from forfeited property.
The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property.
The bill would also require states “to abide by state law when forfeiting seized property.” This is important. Currently, a number of state legislatures across the country have passed reform bills to rein in forfeiture abuses. The problem is that the federal government has a program known as “adoption” or “equitable sharing.” Under the program, a local police agency need only call up the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives or similar federal agency. That agency then “federalizes” the investigation, making it subject to federal law. The federal agency then initiates forfeiture proceedings under the laxer federal guidelines for forfeiture. The feds take a cut and then return the rest — as much as 80 percent — back to the local agency. This trick thwarts the intent of state legislature that have attempted to make civil forfeiture more fair when it comes to burden of proof, protections for innocent property owners and eliminating the perverse incentive of allowing forfeiture proceeds to go to the same police agency that made the seizure.
Which brings us to a final important provision in the bill: It would “would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.” Read the full text of the bill here.
Paul, along with Sen. Cory Booker (D-N.J.), appears to be walking the walk when it comes to criminal justice reform. In addition to the redemption bill he and Booker co-sponsored that I wrote about a few weeks ago, Paul also recently introduced a bill that would bar the federal government from prosecuting medical marijuana patients in states where medical marijuana is legal.
I’ve seen some critics on social media and elsewhere point out that Paul appears to be positioning himself for a presidential run, so this may just all be part of his run-up to 2016. As I wrote in my prior post, I’m skeptical of the notion. This particular bill notwithstanding (civil asset forfeiture is extremely unpopular, and there is actually a history of Republican-led reform on this issue), it seems unlikely that most of these reforms are going to help Paul in the Republican primaries. And as Emily Bazelon has pointed out, it isn’t at all clear how a policy such as restoring voting rights to felons would benefit Republicans. It’s far more likely to hurt them. It seems to me that Paul is actually leading on these issues.
But even if Paul’s reform crusade is all political posturing, so what? If these bills pass and result in needed reforms, I doubt that the former prisoners with restored voting rights, the victims of forfeiture abuse or the ex-inmates who can now pursue a second chance at life with a clean record will care much about the motivations of the sponsors of the bills that made those things happen.
More encouraging, think about what this allegation that Paul is posturing really means. In 1996, the House speaker sponsored a bill that would have allowed for the execution of marijuana distributors. That former speaker, Newt Gingrich, more recently advocated for prison reform. (Aside: It’s worth noting that Gingrich is all over the place on these issues — in the same year that he wrote the linked op-ed, he praised the draconian drug policies of Singapore, where drug dealers can face mandatory execution.) A U.S. president who left office as recently as 1992 once suggested something similar.
Today, two states have decriminalized marijuana, at least two more will soon vote on the matter, and not only is a leading contender for the Republican presidential nomination introducing bills to dramatically reform the criminal justice system, some of his critics are suggesting that he’s only doing so because it is politically popular. That’s a huge amount of progress in a short amount of time.