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Yesterday Congressman Barney Frank  (D-MA) introduced the Asset Forfeiture Fund Reform and Distribution Act.  The bipartisan legislation (co-sponsored by US Representatives Walter Jones (R-NC), John Tierney (D-MA), Frank Guinta (R-NH), Ed Markey (D-MA), Chellie Pingree (D-ME), Steven Lynch (D-MA), Joe Courtney (D-CT), Michael Michaud (D-MA), Mike McIntyre (D-NC), Frank Pallone (D-NJ), James McGovern (D-MA) and Bill Keating (D-MA)) would make significant improvements in the Magnuson-Stevens Fishery Conservation and Management Act. The proposed legislation would initially redirect the monies in the National Oceanic and Atmospheric Administration (NOAA) Asset Forfeiture Fund (AFF) from NOAA’s Office of Law Enforcement (OLE) to reimburse the legal fees and associated costs assumed by those parties recommended by Special Master Hon. Charles B. Swartwood III.

Until September 30th, remaining funds would be directed to a split between stock assessments and state research projects with all such funds directed after October 1st to state and local research projects.  These are positive and welcome changes to the Magnuson-Stevens Fishery Conservation Act, but Congress should go further and remove any statutory allocation of forfeiture funds and simply mandate that all agency funds be allocated through appropriations. Without removing direct agency control of forfeited funds, there still exists incentives for seizures to be maximized and there is a significant risk that these reforms will be circumvented over time by law enforcement or other incentivized bureaucrats.

While in control of the asset forfeiture fund, employees of NOAA’s Office of Law Enforcement have submitted duplicate, undocumented, and unexplained expenses for reimbursement, been accused of malicious and capricious treatment of fishermen, purchased more vehicles than the department had employees, shredded between 75-80% of the documents related to an ongoing investigation by the Inspector General of the Commerce Department at the behest of the then director of the OLE, spent some $580,000 on international travel to over 40 destinations with only 17% of the international travel related to investigations or enforcement proceedings, and employed such messy bookkeeping that outside auditors were unable to explain what happened to approximately 40% of NOAA’s asset forfeiture funds over a 4 ½ year period. These episodes, while egregious, are not unique to the NOAA’s Office of Law Enforcement.  They are a characteristic of agencies in direct control of asset forfeiture funds. Removing corrupting incentives to commit seizures will increase the honesty of our public officials and ultimately help restore public confidence in our government officials.

The proposed legislation would also place a cap of five years on the regional Administrative Law Judge assignments that NOAA currently employs.  This is a step in the right direction but some of the Administrative Law Judges should be rotated immediately whether by legislation or by the demand of Dr Jane Lubchenco, NOAA Administrator. As the Massachusetts Gloucester Times editoralizes:

The latest chapter in Lubchenco’s out-and-out defiance of lawmakers’ and even now Locke’s order stems from the news, reported first by the online website SavingSeafood.com and then by (the Gloucester)Times, that Administrative Law Judge Parlen L. McKenna was reassigned on June 27 by Coast Guard Chief Judge Joseph N. Ingolia “to oversee efforts to recover legal fees and other expenses incurred by Capt. Yacubian during his lengthy defense against NOAA’s charges of overfishing in closed waters.”

And that assignment comes after a report by Commerce investigative master and retired Judge Charles B. Swartwood III found that McKenna and the enforcement lawyers in the case were scheduled to travel together to a conference in Kuala Lumpur, Malaysia, at the time the judge issued his ruling. Swartwood found that McKenna’s ruling ignored a federal judge’s decision to vacate the penalties imposed; in the face of the federal judge’s decision, McKenna reinstated the original penalties.

Meanwhile, as SavingSeafood reported, “Numerous Freedom of Information Act requests have yielded documents suggesting, but not quite confirming, that the (Kuala Lampur) trip was paid for using the Asset Forfeiture Fund.” That’s the same fund that was bolstered by the $430,000 fine levied against Yacubian.

There’s more, of course. While also rightfully seeking to recoup legal costs, the Gloucester Seafood Display Auction will also once again be facing Administrative Law Judge Walter J. Brudzinski.

That’s the same judge who, while adjudicating the auction case previously, refused to allow the release of documents ordered delivered to the auction lawyers as part of discovery. And, according to Swartwood’s finding, the auction was the subject of “selective enforcement by NOAA, (with) little, if any credible evidence…” showing that the auction was “engaged in any pattern of intentional, illegal behavior.” (http://www.gloucestertimes.com/opinion/x967734554/Editorial-NOAAs-use-of-judges-a-new-low-for-flawed-justice)

Lastly, the bill does not appear to correct much of the process considerations that are at the heart of forfeiture injustice. Most directly, seizures can still happen before charges are filed and victims will still face a manifestly unjust legal process where they have to prove the innocence of their property. Congress should consider bolstering the due process protections afforded victims and force the government to get a criminal conviction prior to taking property that it alleges is party to a crime.

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