CAFRA Legislative History

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Legislative History of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA)

Civil Asset Forfeiture Reform Act of 2000, Pub. L. 106-185, 114 Stat. 202 (2000), enacted April 25, 2000.
Department of Justice legislative history documents.

CAFRA legislative history by Stefan D. Cassella (Assistant Chief of the Asset Forfeiture and Money Laundering Section of the U.S. Department of Justice and was the principal drafter of the Department of Justice’s asset forfeiture proposals).

A. The Legislative History
The legislative history of CAFRA stretches over four years, from the introduction of competing bills in the House of Representatives in 1996 and 1997 to the floorstatements of its sponsors on the day it passed the House in final form in April, 2000. In many cases, provisions ultimately included in CAFRA can be traced directly back to provisions introduced by Rep. Henry J. Hyde (R. Ill.) or drafted by the Department of
Justice and introduced by then-Rep. Charles E. Schumer (D. N.Y.) in 1996 and 1997.

The legislative history of those proposals – which includes hearings conducted in 1996 and 1997 and a comprehensive 1997 Committee Report – therefore applies to the provisions that became law. In other cases, provisions ultimately included in CAFRA were not developed until 1999 when the bill moved to the Senate, or not until the final weeks before final passage. In those instances, the legislative history
consists only of the statements of witnesses at the 1999 Senate hearing, statements made by the Senate sponsors of the two bills that were ultimately combined to produce CAFRA, or statements of Senators and Representatives placed in the Congressional Record when the bills went to a final vote in the Senate and House, respectively. There is, unfortunately, no Committee Report from either the House of Representatives or the Senate regarding the final version of the bill. The Department of Justice has published a compilation of the relevant portions of the legislative history.4 The following is a brief recitation of the key events. ... [continued here].

FN 4: 4See LEGISLATIVE HISTORY: CIVIL ASSET FORFEITURE REFORM ACT (CAFRA) OF 2000 (May 2000)
(published by the U.S. Department of Justice (469 pages)) [hereinafter DOJ EXTRACT].

U.S. Government publications re Civil Asset Forfeiture Reform Act legislative history:

104th Congress, 1996:

H.R. 1916, introduced by Rep. Henry Hyde on June 22, 1995. This is the first legislative history of the many provisions that substantially survived into the final version of CAFRA, including: abolishing the cost bond, authorizing the release of seized property pending trial to avoid a hardship, and extending the time for filing a claim in an administrative forfeiture action to 30 days.

Provisions discussed in 1996 Congressional Hearings on H.R. 1916 and the counter-proposal drafted by Department of Justice that were substantially enacted in CAFRA:

placement of the burden of proof on the government by a preponderance of the evidence (Hearing Before the Committee on the Judiciary, No. 94, 104th Cong., 2nd Session (July 22,1996) at 130-31);
requirement of a "substantial connection" between forfeited property and the underlying crime (id. at 131);
uniform innocent owner defense (id. at 137-41);
payment of pre-judgment interest (id. at 127);
amendment to the Federal Tort Claims Act (id. at126);
stay of civil forfeiture case pending completion of criminal investigation (id. at 142);
expansion of forfeiture to cover proceeds of most federal crimes (id. at 172);
expansion of criminal forfeiture to all cases where civil forfeiture is available (id. at 169);
fugitive disentitlement doctrine (id. at 209);
making grand jury information available in civil forfeiture cases (id. at 212);
out-of-district seizure warrants
expansion of forfeiture to alien smuggling (id. at 177-79);
authorize use of forfeiture funds to pay restitution to crime victims (id. at 189-91);
procedures for enforcing foreign forfeiture judgments (id. at 191-94);
adjudication of challenges under the Excessive Fines Clause of the Eighth Amendment (id. at 134).

Provisions of the Civil Asset Forfeiture Act of 2000 derived from H.R. 1916 include:

abolishing the cost bond;
release of seized property pending trial to avoid hardship;
extending time for filing claims in administrative forfeiture actions to 30 days.

104th & 105th Congress, 1997:

H.R. 1835, 104th Congress, introduced by Rep. Hyde, and
H.R. 1745, 104th Congress, the Department of Justice' bill introduced by Rep. Schumer.

The House Judiciary Committee held a second CAFRA hearing on these two bills on June 11, 1997.

Civil Asset Forfeiture Reform Act, Hearing Before the Committee on the Judiciary (June 11, 1997). See also: 1997 WL 311709 (Statement of Stefan D. Cassella on behalf of the Department of Justice); 1997 WL 11233602 (Statement of Jan P. Blanton on behalf of the Department of the Treasury); 1997 WL 316566 (Statement of Rep. Henry J. Hyde); 1997 WL 11233673 (Statement of David Smith on behalf of the National Association of Criminal Defense Lawyers).

H.R. 1965, 105th Congress, 1997 CQ US HR 1965, a compromise bill

introduced June 22, and reported Oct. 20, which according to Stefan Cassella:

combined the provisions of H.R. 1835 and H.R. 1745, and is similar in most respects to what was ultimately enacted in CAFRA three years later. Therefore, the House Report on H.R. 1965 is the most comprehensive legislative history of the provisions of the new law that were included in the 1997 bill.²³ Among the provisions ultimately included in CAFRA, the 1997 Committee Report discusses the burden of proof provision, the innocent owner defense, the authority to release property upon the showing of a hardship, the amendment to the Federal Tort Claims Act, the authority to pay pre-judgment interest, the forfeiture of the proceeds of most federal crimes, the definition of “proceeds,” and the expanded availability of criminal forfeiture. The Report also describes the procedural deadlines for administrative and judicial forfeiture cases, the procedure for resolving Eighth Amendment challenges, the standard for filing a civil forfeiture complaint, the seizure warrant requirement, and the government’s authority to obtain access to bank records in “bank secrecy” jurisdictions. Finally, the Report explains the provisions relating to the disclosure of grand jury information, the use of forfeited funds to pay restitution, the enforcement of foreign forfeiture judgments, and the extension of the statute of limitations in civil forfeiture cases.

23 See Civil Asset Forfeiture Reform Act, H.R. 105-358, 105th Cong. 1st Sess. (1997) (“1997 Committee Report”); DOJ EXTRACT, supra note 4 at 218-71.

Civil Asset Forfeiture Reform Act : 1997 Committee on the Judiciary report (to accompany H.R. 1965) (including cost estimate of the Congressional Budget Office).

Compromise bill failed, no legislation enacted in 105th Congress.

106th Congress, 1999:

H.R. 1658, introduced by Rep. Hyde. According to Stefan Cassella:

In 1999, Mr. Hyde started over by reintroducing a modified version of his original bill as H.R. 1658, 106th Congress. No hearings were held on that bill, but the 1999 Committee Report on H.R. 1658 refers to, and incorporates, the testimony presented to the Committee at the 1996 and 1997 hearings.24 It should be noted that many of the pro-law enforcement provisions that were ultimately enacted as part of CAFRA were deleted from the 1999 Hyde bill and were not restored until the bill reached the Senate. Therefore, the 1999 House Report does not contain the discussion of all of the proposals that appeared in the 1997 Report.
In June 1999, the House passed H.R. 1658 after a lengthy Floor debate and after rejecting a substitute amendment offered by Rep. Asa Hutchinson (R. Ark.) and others.

Committee of the Whole House on the State of the Union, June 24, 1999: remarks by Mr. Hyde remarks by Mr. Hyde, Congressional Record pp. H4854-H4858; and debate, including burden of proof, innocent owners, appointment of counsel pp. H4858-H4879.

Civil Oversight of Federal Asset Forfeiture: Its Role In Fighting Crime, hearing before the Subcommittee on Criminal Justice Oversight of the Committee on the Judiciary, United States Senate, 106th Congress, 1st Session, July 21, 1999 (includes statement of Deputy Attorney General Eric Holder who, according to Stefan Cassella, "inserted into the hearing record an analysis of the Department of Justice’s counter proposal, which became the basis for S.1701, a substitute for the House bill introduced in the Senate later in 1999 by Sens. Jeff Sessions (R. Ala.) and Charles E. Schumer (D. N.Y.). The Holder Statement therefore represents a significant portion of the legislative history of the Sessions-Schumer bill." Also includes testimony by: Johnny Mack Brown on behalf of the National Sheriffs Association; Samuel J. Buffone on behalf of the National Association of Criminal Defense Lawyers; and Roger Pilon on behalf of the Cato Institute.

Senate Bill 1701, introduced by Senators Sessions and Schumer, October 6, 1999, remarks by Senators Sessions and Thrumond, pp. S12108-S12109. According to Stefan Cassella:

A number of important provisions of CAFRA, including the provision on payment of attorneys fees now codified at 28 U.S.C. § 2465(b),29 the provision requiring the judicial forfeiture of real property now codified at 18 U.S.C. § 985,30 and the amendment to the “fungible property” provision in 18 U.S.C. § 984,31 appeared for the first time in this bill. S.1701 also contained numerous pro-law enforcement provisions that were included in the 1997 compromise but excluded from the bill passed by the House in 1999.

Senate Bill 1931, introduced by Senator Hatch, November 16, 1999, remarks by Senators Hatch and Leahy, CONG. REC. S14612-05, S14628-S14635 (1999) (Hatch Civil Asset Forfeiture Reform Bill).

106th Congress, 2000:

According to Stefan Cassella:

In the end, what became law was a concatenation of the reform provisions from the Hatch-Leahy bill and the law enforcement improvements from the Sessions-Schumer bill. That bill was passed by the Senate in March 2000 after Rep. Hyde agreed to accept it in place of the bill passed by the House. In other words, while the bill passed by the Senate was denoted H.R. 1658, the Senate did not act on the House bill but instead substituted the language taken from the two Senate bills, and the House passed the bill as passed by the Senate without further amendment. The only legislative history directly linked to the bill as enacted consists of statements of Sens. Hatch, Leahy and Sessions on March 27, 2000, on the Senate Floor, and statements of Rep. Hyde and others on the House Floor on April 11, 2000.

House passage of H.R. 1658, as amended, 146 CONG. REC. H2040 et seq., (April 11, 2000), the Civil Asset Forfeiture Reform Act of 2000.

Enacted April 25, 2000: Civil Asset Forfeiture Reform Act of 2000, Public Law 106-185 [114 Stat. 202 (2000).