Texas resident Anthonia Nwaorie was ready to board a flight to Nigeria, eager to start a medical clinic for women and children with limited access to health care. Unfortunately, the funds she was bringing to start the clinic were seized by federal agents.
No, Anthonia was not involved in any illegal enterprise. She was not participating in any drug trade – far from it. Anthonia, a grandmother and registered nurse, was not even charged with a crime.
Anthonia entered a lengthy legal battle with Customs and Border Protection (CBP) when she refused to waive her constitutional rights in return for the money. Sadly, Anthonia is not the only victim of an immoral seizure by the government and the ensuing legal headache.
Terry Dehko, a Michigan grocer woke up in 2013 to find out his store’s bank account was empty. The IRS seized more than $35,000 using civil forfeiture. Terry would deposit cash he received from customers of the grocery store, understanding his commercial insurance policy limited losses of cash to $10,000.
The IRS did not ask any questions but acted swiftly by seizing the money and causing a nightmare for the Dehko family. Ever since Terry’s case, civil forfeiture has been front of my mind.
Unlike criminal proceedings, civil forfeiture does not require proof beyond a reasonable doubt. The government can seize and keep cash, cars, and other assets without a conviction — often without proving anything by any standard in any court.
In more than 90% of federal cases, the government overwhelms property owners in a procedural maze and wins administratively.
As Americans, we take due process for granted, but people trapped in civil asset forfeiture proceedings are guilty until they prove themselves innocent.
Anthonia’s and Terry’s cases are not unique, but sadly, just one of thousands showing the need for H.R. 1525, the Fifth Amendment Integrity Restoration (FAIR) Act. I introduced this bipartisan measure with Rep. Jamie Raskin, D-MD, to reduce civil forfeiture abuse nationwide and restore due process to Americans. In June, the FAIR Act was advanced unanimously by the House Judiciary Committee.
Some defenders of civil forfeitures claim the bill would dismantle a tool in the war on drugs and aid drug cartels. As a lifelong supporter of law enforcement, I take these concerns seriously. But the critics can’t substantiate these claims, and research undercuts this narrative.
One study shows that eliminating civil forfeiture at the state level, which New Mexico did in 2015, does not increase crime or reduce arrest rates. Another study shows that more forfeiture revenue from federal partnerships — called equitable sharing — does not translate into more crimes solved or less drug use.
The reason for the lack of correlation relates to the perverse incentives built into civil forfeiture. Federal law and many state laws allow participating agencies to keep 100% of proceeds for themselves, creating a mechanism to self-fund through aggressive enforcement focused on activities most likely to generate payment.
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Agencies can start to rely on the revenue, which funds items from armored vehicles to luxury travel, but also mundane items for daily operations. When budgets tighten, priorities can shift from fighting crime to raising revenue.
The results are staggering. During the 20-year span from 2000 to 2019, federal agencies pocketed more than $45.7 billion from forfeiture, while paying out an additional $8.8 billion to state and local agencies through equitable sharing.
The FAIR Act would remove the financial incentive by directing civil forfeiture proceeds to the General Fund of the U.S. government, and by eliminating equitable sharing. Joint operations with state and local agencies could continue. So could civil forfeiture. But additional safeguards would protect people like Anthonia Nwaorie and Terry Dehko.
Besides ending the profit incentive and equitable sharing, the bill would end administrative forfeiture, allowing all property owners to have their day in court. Government officials could no longer "seize first and ask questions later" and then leave victims to navigate the process on their own, much like Anthonia and Terry were left to do.
The FAIR Act is a golden opportunity to protect Americans and their assets from government overreach and return to American principles like due process enshrined in our Constitution. We must pass the FAIR Act to protect the fundamental rights of American citizens.
