Those reforms include channeling forfeiture revenue to functions other than law enforcement, a change designed to eliminate the profit motive that warps police priorities. Similarly, the FAIR Act would assign federal forfeiture proceeds, which last fiscal year totaled more than $2 billion, to the general fund instead of the Justice Department.
The FAIR Act also beefs up protections for innocent owners. It requires the government to prove that the owner of an asset allegedly used to facilitate a crime either himself used the property for illegal purposes, consented to that use or was "willfully blind" to it.
Current law puts the burden on innocent owners to show they did not know about the illegal use or "did all that reasonably could be expected under the circumstances to terminate such use." In other words, property owners are guilty until proved innocent, turning an ancient principle of justice on its head.
These reforms should not only make it harder for the government to take innocent people's property, but also discourage it from trying. The latter effect is important because fighting a forfeiture is arduous and expensive -- so expensive that it typically costs less simply to let the government keep its ill-gotten gains.
Last year, after Russell Caswell succeeded in blocking the federal government's forfeiture of his Massachusetts motel based on drug offenses committed by a tiny fraction of his guests, he said he could not have done it without the pro bono help of the Institute for Justice. As Caswell noted, "The government goes after people they think can't afford to fight." The FAIR Act promises to make such contests less lopsided and less common.
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