(Senate - June 09, 2016)

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[Page S3723]
From the Congressional Record Online through the Government Publishing Office []


      By Mr. GRASSLEY (for himself and Mr. Leahy):
  S. 3045. A bill to amend title 18, United States Code, to reform 
certain forfeiture procedures, and for other purposes; to the Committee 
on the Judiciary.
  Mr. GRASSLEY. Mr. President, today I am introducing the DUE PROCESS 
Act. I am very pleased that Senator Leahy is a cosponsor of the bill. 
This legislation will make important reforms to the practice of civil 
asset forfeiture.
  The Senate Judiciary Committee held hearings last year on the 
problems associated with civil asset forfeiture. This is a process by 
which a person who has been convicted of no crime, and in fact is often 
not even charged with a crime, can nonetheless lose his property if the 
property is suspected to be owned as a result of wrongdoing. Civil 
asset forfeiture has a place in our society, including gaining control 
over assets used to further terrorism and the drug trade. But there 
have been excesses, and this bill is designed to address many of them.
  Working together in a bipartisan and bicameral way, we have had 
months long discussions about how to draft legislation to improve the 
fairness of civil asset forfeiture. The bill that I am introducing 
today has been introduced and passed through the House Judiciary 
Committee on a bipartisan voice vote. It is the result of these 
bipartisan and bicameral discussions. The Senate should consider the 
same bill.
  The DUE PROCESS Act broadens the timelines for an owner to challenge 
forfeitures. It extends protections in existing law to judicial 
forfeitures, not only administrative forfeitures. The government must 
provide greater notice to owners whose property has been seized, 
including notice of the rights that they may invoke to regain their 
property and their right to be represented by counsel in contesting a 
forfeiture either judicially or administratively. The property owner is 
given more time to respond to the seizure. Very importantly, an owner 
who challenges the seizure receives an initial hearing, at which time 
she is further notified of her rights and will have her property 
released if the seizure was not made according to law. Under the bill, 
the government must prove that seizure is warranted by clear and 
convincing evidence, rather than the current preponderance of the 
evidence standard.
  Some of these provisions are in the bill because of media reports, 
including in my home state of Iowa. For instance, the Des Moines 
Register has reported that in many instances, innocent motorists 
surrender the property that law enforcement seizes without always 
having an understanding of how the seizure can be challenged. The bill 
will ensure that those whose assets are seized are given notice of the 
process by which the seizure can be contested and their right to have 
counsel represent them in the forfeiture proceeding.
  In a change to criminal forfeiture, which can take place after a 
defendant is convicted of a crime, the bill overturns the Supreme 
Court's recent decision in Kaley v. United States. A defendant will 
have the right to ask for a hearing to modify the seizure so as to 
demonstrate that assets not associated with the charged criminal 
activity can be used to hire the attorney of the defendant's choice. 
The court is directed to consider various factors at the hearing.
  Additionally, the bill makes it easier for those whose assets have 
been seized to recover their attorney's fees when they settle their 
cases. The bill requires the Justice Department's Inspector General to 
audit a sample of civil forfeitures to make sure they are consistent 
with the Constitution and the law. And it directs the Attorney General 
to establish databases on real-time status of forfeitures and on the 
types of forfeitures sought, the agencies seeking them, and the conduct 
that leads the property to be forfeited.
  Further, the bill codifies DOJARS policy to allow civil forfeiture in 
structuring cases only when the property to be seized is derived from 
an underlying crime other than structuring, or where it is done to 
conceal illegal activity. Structuring is a crime by which cash deposits 
or withdrawals are made with the intent of avoiding government 
reporting requirements. In Iowa, for instance, prosecutors brought an 
action against a restauranteur, Carole Hinders, who had deposited cash 
from her operations without any intention to evade any reporting 
requirement or to conceal some other illegal activity. After IRS 
changed its policy, prosecutors dropped the case. The bill will prevent 
the government from pursuing civil asset forfeiture cases such as these 
in the future.
  Finally, the bill expands existing protections for innocent owners of 
property that is sought to be forfeited. The government will have to 
prove that there is a substantial connection between the property and 
an offense and that the owner of the seized property intentionally used 
the property, knowingly consented to its criminal use, or reasonably 
should have known that the property might be used in connection with 
the offense.
  Many of these provisions strengthen the Civil Asset Forfeiture Reform 
Act. That legislation improved the process and provided greater 
protection for innocent owners involved in civil asset forfeiture than 
had previously been the case. But, as we have seen, excesses and 
injustices still remain. The DUE PROCESS Act is designed to make 
further progress in this area to protect the rights of people whose 
property has been seized without any judicial finding of criminal 
  The problems associated with civil asset forfeiture need to be 
addressed. In various ways, it would have been preferable to make 
changes that go even beyond those in this bill. However, we do want to 
work with law enforcement and address their legitimate interests and 
concerns. I can assure them that we will continue to talk as this 
legislation works its way to Senate passage.