Bipartisan call for legislative right to counsel in civil forfeiture cases continues to grow

Calls to reform civil forfeiture proceedings have come from all sides of the aisle, with legislation filed in 2017 at both the federal and state level. While some of this reform would abolish civil forfeiture altogether, other bills would improve the due process provided, including guaranteeing counsel for indigent defendants.  Coverage of the lack of a right to counsel in civil forfeiture cases has been abundant, with articles coming from the Wall Street Journal, Heritage Foundation, Detroit News, and Washington Times, to name a few.

Recently, a representative of the Institute for Justice, a conservative think tank, wrote a piece in the Alabama media that notes with disapproval Congress’s failure to pass the 2016 Due Process Act, which would have guaranteed counsel for all federal civil forfeiture proceedings (current federal law only provides a right to counsel for federal civil forfeiture proceedings involving a primary residence).  And an attorney who often writes for the Reason Foundation and the Pelican Institute for Public Policy penned a piece in the Louisiana Advocate noting the standard of proof problems and added, ” To make matters worse, property owners do not have the right to an attorney in civil forfeitures. Hiring an attorney can be expensive, so civil forfeitures often go uncontested.”

In 2017, there are bills at the state level that propose providing a right to counsel for state civil forfeiture proceedings.  Additionally, federal law guarantees counsel to indigent defendants in federal civil forfeiture proceedings if the property being forfeited is the defendant’s primary residence.  A 2017 bill, the Fifth Amendment Integrity Restoration Act (HR 1555 / S 642), would expand this right to cover all civil forfeiture proceedings happening in federal court.  A similar bill in 2016, the Due Process Act, was supported by a bipartison coalition, and the Leadership Conference issued a letter to Congress in support of the bill.  The active bill, along with all other federal state bills, is tracked on the NCCRC website.

In 2015, in response to a Senate Judiciary Committee hearing relating to civil asset forfeiture reform, the Leadership Conference on Civil and Human Rights (“a coalition of more than 200 national organizations”) issued a letter calling for, among other things, a right to counsel in all civil forfeiture proceedings.  Current federal forfeiture law provides a right to counsel only where the asset seized is the defendant’s primary residence, and it does not apply to forfeiture proceedings in state court.  A number of people testifying at the hearing discussed the need for appointed counsel at these proceedings.  Sen. Rand Paul referred to his Fifth Amendment Integrity Restoration Act that he introduced in 2014, which he said would provide counsel, and a representative from the Institute for Justice also called upon the provision of counsel to indigent defendants.