Toledo Blade editorial: Taming federal forfeiture

Civil forfeiture allows the government to take people's property on account of crime — without proving anyone guilty. But a local congressman is working to reform the practice and provide better due-process protections.

Rep. Tim Walberg (R., Mich.), whose district abuts Toledo, and Sen. Rand Paul (R., Ky.) have introduced what they call the Fifth Amendment Integrity Restoration Act. The name reflects the part of the Bill of Rights that binds the federal government to respect due process.

And that's what the bill would do.

According to a statement from Senator Paul's office, the FAIR Act would require the federal government, in order to take property because it was used in a crime, to prove that the owner consented to that use or was willfully blind to it. Forfeiture cases would have to be proved by clear and convincing evidence, a level of proof higher than what's usually required in civil cases, though not as high as what a criminal conviction requires. The bill includes other reforms, too.

Although it's called "civil," forfeiture is not like normal civil lawsuits. It doesn't compensate a private party who was harmed by someone's misconduct. Rather, when the government takes property because it was used in a crime or was earned through crime, its motives include making sure crime doesn't pay and preventing more crime from happening. That makes asset forfeiture a lot like criminal punishment, which serves the same purposes. So it's only reasonable that a high level of proof should be required.

And if forfeiture is like punishment, taking the property of someone who didn't know it was being used for a crime is like punishing the wrong person. Everyone would see the injustice in locking someone up because his sister sold drugs without his knowledge. It's no better to take his house because his sister sold drugs from it, unless he agreed to let her.

Some states, including Ohio just this January, have reformed their asset-forfeiture laws already. It's time for the federal government to follow suit. This bipartisan bill would strengthen due process in forfeiture cases. It should be passed.

This editorial originally appeared in the March 30 edition of the Toledo Blade.