Over the next few weeks, I'll be posting thoughts on what Representative Tim Walberg's proposed legislation, H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, promises, and how the legislation might be improved. I encourage our readership to suggest further improvements by emailing me (scott at forfeiturereform dot com), commenting on our Facebook page, or commenting on the blog page.
Today, I'll cover forfeiture notices.
H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, would require the government to notify potential claimants that they may be able to obtain free or reduced rate legal representation under 18 U.S. Code § 983(b). We support that amendment.
H.R. 5212 should, however, go further.
(1) Congress should require that forfeiture notices fully inform potential claimants of what steps the potential claimant needs to take to gain a court-appointed lawyer under 18 U.S. Code § 983(b) and of the eligibility requirements.
(2) Congress should require that forfeiture notices inform potential claimants that they can petition the court for an award of their legal expenses if they substantially prevail in an adjudicated civil forfeiture action (28 U.S.C. §2465). 18 U.S.C. § 983(b) appointments are reserved for indigent claimants facing civil forfeitures against real property that is being used by the person as a primary residence and/or potential claimants facing a related criminal case who already have a court-appointed lawyer. Few potential claimants fit either criteria. Congress has, however, enacted legislation (the Civil Asset Forfeiture Reform Act of 2000 (the first "CAFRA")) to stimulate a market for lawyers to take civil forfeiture cases on the hopes of being awarded attorney fees and other legal expenses. These fee-shifts provide potential claimants with the possibility of finding lawyers who will take their cases at no cost to the claimant or at a reduced cost. Potential claimants should be made aware of this. Moreover, Congress should want claimants to seek fee-shifts because they serve the public good. First, in assuring that more forfeiture claimants are competently represented, fee-shifts reduce the instances where the Government is able to profit from a claimant's ignorance of asset forfeiture procedure. Second, fee-shifts discourage the Government from pursuing bad cases because fee-shifts attach a substantial cost to losing an adjudicated civil forfeiture case. Third, fee-shifts encourage vigorous representation because the attorneys' pay hinges on prevailing. Fourth, fee-shifts make it more economically feasible for attorneys to offer pro bono legal services by providing some assurance that if the litigation does stretch out for years, and if their client substantially prevails, the attorney doesn't bear a crippling expense. Moreover, fee-shifts enable institutions like the ACLU and the Institute for Justice to defend against more injustices by defraying their costs when they prevail.
All of these goods, however, go unrealized if the claimant, unaware of the promise of fee-shifts, forgoes consultation with an attorney because the potential legal expense appears to outweigh the value of the property seized.
(3.) Congress should instruct the Executive branch to standardize forfeiture notifications. Currently, different agencies send out different instructions to potential claimants. That leads to confusion over how to respond to the instructions.
(4.) Congress should instruct the Executive branch to make clearer the instructions for, and the consequences of, filing a "Petition for Remission and/or Mitigation" or filing a claim contesting the forfeiture. The current instructions are confusing and fail to adequately explain that filing a Petition for Remission and/or Mitigation, in lieu of a claim, concedes the potential claimant's right to have a judge or jury adjudicate the forfeiture action. Moreover, the instructions obscure the fact that filing a Petition for Remission and/or Mitigation gives the agency (that has already declared its intent to forfeit the property) discretion to decide the Petition for Remission and/or Mitigation. The upshot is that some potential claimants mistakenly file Petitions for Remission and/or Mitigation when they mean to file claims or don't understand the consequences of filing such petitions.
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