New bill makes it much more difficult for authorities to seize assets

Presently, authorities only need to prove their case by a “preponderance of the evidence” before seizing assets connected to a criminal activity. However, several U.S. senators hope to change this.

Government officials are not shy when it comes to asset forfeiture. They will not hesitate to seize an individual’s property connected to a criminal activity even if that individual is never even charged or convicted of the crime-and it’s completely legal.

In some cases, authorities have been known to confiscate every electronic device within a house even if all of the individuals living there are not connected at all to the crime.

But Rand Paul and other senators plan to change this. They have recently introduced a new bill in the U.S. Senate that aims to heighten due process requirements for asset forfeiture.

The FAIR Act

The bill is called the Fifth Amendment Restoration Integrity Act of 2014, or the FAIR Act. The new law aims to “restore the integrity of the Fifth Amendment to the Constitution of the United States.”

This essentially means that the bill would require government authorities to prove their case with “clear and convincing” evidence before seizing property in connection with a crime. Presently, authorities only need to prove their case by a “preponderance of the evidence.”

But what is the difference between the two?

The differences

Both “preponderance of the evidence” and “clear and convicting evidence” are two of various different types of standards that parties in a legal context are obligated to prove.

The “preponderance of the evidence” is one type. With this standard, authorities need to only prove that the facts presented are “more likely true than not true.” If there is more than a 50 percent chance the information is true, then the burden is typically met.

Alternately, proving a case by “clear and convincing evidence” is a bit more difficult. With this standard, officials must show that the truth in the facts presented are “substantially more probable to be true than not.”

Through the FAIR Act, lawmakers hope to heighten the burden of proof for asset forfeiture.

Specific provisions

Provisions of the new bill include the following language:

“If the Government’s theory of forfeiture is that the property used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that-

(A) there was a substantial connection between the property and the offense; and

(B) the owner of any interest in the seized property-

(i) intentionally used the property in connection with the offense; or

(ii) knowingly consented or was willfully blind to the use of the property by another in connection with the offense.”

Likelihood of passage

It remains to be seen whether the bill will advance on to the U.S. House of Representatives. Last month, the Act was sent to congressional committee but has yet to be voted on. However, the initiative is a good step in enhancing public awareness about the importance of preserving due process rights for everyone.

Keywords: asset forfeiture, Senate bill, clear and convincing evidence