The Provisions of S. 1701 Compared, Section-By-Section, with HR 1658:
This comparison chart shows that S. 1701, the Senate forfeiture "reform" bill introduced on Oct. 6, 1999, waters down the few reforms it pretends to adopt from our forfeiture reform bill -- HR 1658 -- and adds numerous new provisions that are worse than current law! This is no "reform" bill -- but a forfeiture expansion bill!!!
by Brenda Grantland, Esq.
revised February 2, 2017
[2017 revision] - In October 1999, Senator Jeff Sessions (R. Ala.) introduced Senate bill 1701, "Civil Asset Forfeiture Reform Act of 1999" - the same name as Representative Hyde's bill, which was FEAR's ideal bill. Sessions' bill was the DOJ's wish list. During the Senate compromise the Senate Judiciary Committee merged provisions of the Hyde bill and the Sessions bill, watering down the reforms FEAR sought, and adding hundreds of new offenses which triggered forfeiture.]
S. 1701 is by no means a compromise between the recently passed Hyde bill (HR 1658)* and current law. Only a few reforms from HR 1658 are included in S. 1701, and they are seriously watered down -- often to the point of being useless. Some of the new provisions of S. 1701 are the same as current law (why bother?) and many are much worse than current law. All in all, we're better off with current law than with this horrible bill. Please join us in making sure S. 1701 is soundly defeated and a Senate version of HR 1658 is passed.
Note: When the entry in column 3 below indicates there is no similar provision in HR 1658 -- the material in parenthesis in paragraph 4 indicates whether the S. 1701 provision is the same as or worse than current law.
| S. 1701 section | What S. 1701 provides: | HR 1658 section | What HR 1658 provides: |
| Sec. 2 | burden of proof on government - by preponderance of evidence | Sec. 2 - new §981(j)(5) |
burden of proof on government - by clear and convincing evidence |
| Sec. 3 - new §981(l)(1)(A) | administrative forfeiture process must be commenced within 60 days of seizure | Sec. 2 - §981(j)(1)(A) | administrative forfeiture must be commenced within 60 days of seizure |
| Sec.3 - new §981(l)(1)(B) |
- remedy for failure to give notice within 60 days = return of property to owner until government gives notice | Sec. 2 - new §981(j)(1)(C) |
remedy for failure to give notice, unless good cause is shown, government may not commence forfeiture |
| Sec.3 - new §981(l)(2) | - extension of time can be obtained from Atty. General or whoever Atty. General delegates power to | Sec. 2 - new §981(j)(1)(A) |
- extention of time may be obtained only from the judge |
| Sec.3 - new §981(l)(3) | motion to set aside declaration of forfeiture for failure to give notice - imposes 2 year statute of limitations on claimant who does not receive notice. | not in HR 1658 | (this provision of S. 1701 is worse than current law. Currently claimant may bring Rule 41(3) motion, and has a 6 year statute of limitations) |
| Sec.3 - new §981(l)(3)(B) | - if set aside, government gets to start over | Sec. 2 - new §981(j)(1)(C) |
if person who owns an interest in property is not given notice, unless government shows good cause for failure, they may not commence forfeiture |
| Sec.3 - new §981(l)(3)(C) | - if property has been disposed of, forfeiture starts over against a sum of money equal to value of property | Sec. 2 - new §981(j)(1)(C) |
unless good cause is shown, government may not commence forfeiture after failing to give notice |
| Sec.3 - new §981(l)(3(D) | - above is exclusive remedy for obtaining review of bogus forfeiture without notice | not in HR 1658 | (under current law Criminal Rule 41(e) is the remedy; it has fewer hurdles for claimant) |
| Sec.4a - new 19USC§1608 | administrative claim must be filed within 30 days of publication of notice; new provision - claim must be sworn by claimant |
Sec. 2 - new §981(j)(2)(B) |
30 days from the date of notice or publication, need not be sworn |
| Sec.4a- new §1608(b) | cost bond which claimant must pay to have any judicial remedies -- 10% of value of property, up to $5000, with $250 minimum (same as current law) | Sec. 2 - new §981(j)(2)(F) |
eliminates cost bond |
| Sec.4a- new §1608(c) | allows claimants to post other property in lieu of the cost bond, but the property has to be in a greater amount. | not in HR 1658 | |
| Sec.4a- new §981(d) | allows claimants to post other property in lieu of the cost bond, but the property has to be in a greater amount. | not in HR 1658 | (This S. 1701 provision takes away as much as it gives; in the long run it's probably worse than current law) |
| Sec.5 - new §981(m) | government must file forfeiture complaint within 90 days after receipt of claim & cost bond (in some ways worse than current law, which has 60 day limit for vehicles seized in drug related cases) | Sec. 2 - §981(j)(2)(D) |
government must file forfeiture complaint within 60 days of filing of administrative claim (no cost bond required) |
| Sec.5 - new §981(m)(3)(B) | claimant can file a motion to dismiss instead of an answer (same as current law! See F.R.Civ.P. 12(b)) | not in HR 1658 | (this is unnecessary since it is already allowed under F.R.Civ.P. Rule 12(b)) |
| Sec.5 - new §981(m)(4)(A) | claimant can file a motion to dismiss for failure to comply with Supplemental Rule E(2) - This is the same as current law! | not in HR 1658 | (this is unnecessary since it is already allowed under Supp. Rule E(2)) |
| Sec.5 - new §981(m)(4)(B) | claimant may not move to dismiss for insufficiency of evidence at time of filing the complaint (this takes away a remedy available nder current law) | not in HR 1658 | (this provision of S. 1701 takes away a remedy available under current case law) |
| Sec.6 - new §981(n) | motion for return of property - exceptions take away most of the usefulness of this remedy - worse than current law! | not in HR 1658 | (this section of S. 1701 is worse than currnet law) |
| Sec.7 - new §981(o) | award of attorney's fees to successful claimant, who is not charged with any criminal offense, but not lienholders; allows sanctions against claimants too. | not in HR 1658 (but see provisions for appointment of counsel) |
(this section of S. 1701 is worse than currnet law, which allows attorney's fees to successful claimants under Equal Access to Justice Act) |
| Sec.8 - new §981(p) | "new" procedures for real property - are basically the same as current law, except for §981(p)(3), which attempts to overrule the remedies provided by the Supreme Court in U.S. v. James Daniel Good Real Property! | not in HR 1658 | (this section of S. 1701 is worse than currnet law) |
| Sec.9 - amends 28 U.S.C. 2680(c) |
waives sovereign immunity under Federal Tort Claims Act, allowing recovery of damages for negligent handling of property while detained if claimant wins forfeiture case, isn't convicted of a crime, and can show law enforcement function was carried out in an unreasonable manner | Sec. 3 - amends 28 U.S.C. §2680(c) |
waives sovereign immunity for damages to property while detained, if claimant prevails in defeating forfeiture; claimant doesn't have as many obstacles to recovery as under S. 1701 |
| Sec.10 - new §983 | uniform innocent owner defense which makes it harder to prove innocence than current standards under most federal civil forfeiture statutes | Sec. 2 - new §981(j)(6)(A-B) |
uniform innocent owner defense for owner who either did not know of illegal activity, or after learning of it, "did all that reasonably could be expected under the circumstances to terminate such use of the property." |
| Sec.11 - new §985 | release of property in hardship cases | Sec. 2 - new §981(k) |
release of property in hardship cases |
| Sec.12 - new §981(g) | stay of civil forfeiture case while criminal case pending | not in HR 1658 | (stays are available under current law, but S. 1701 would expand government's powers to seek a stay when no criminal case, but only an investigation is pending, and allows the government to make their presentation ex parte and under seal.) |
| Sec.13 - amends 28 U.S.C. §2465 |
no prejudgment interest, but allows disgorgement of interest US earns on seized money only if the agency invested it in an interest bearing account | Section 4: amends 28 U.S.C. §2465 | requires government to pay successful claimant pre-judgment interest on seized currency, negotiable instruments or proceeds of interlocutory sale |
| Sec.14- amends 18 U.S.C. §981(b) |
seizure warrant requirement | not in HR 1658 | (virtually the same as current law) |
| Sec.14 - new §981(b)(4) | suppression of evidence | not in HR 1658 | (same as current case law!) |
| Sec.15 - amends §981(q) | civil restraining orders - allows court, on motion by government, to restrain assets prior to filing of forfeiture case | not in HR 1658 | (worse than current law) |
| Sec.16 - new §981(r) | excessive fines defense | not in HR 1658 | (same as current law) |
| Sec.17 - new §981(s) | civil investigative demand - allows prosecutors investigating forfeiture case to issue subpoenas for evidence, instead of having to ask grand jury to issue subpoena | not in HR 1658 | (worse than current law!) |
| Sec.18 - new §986(d) | access to records in foreign jurisdictions where people are protected by bank secrecy laws - if claimant refuses to waive his secrecy rights, his claim is dismissed with prejudice! | not in HR 1658 | (worse than current law!) |
| Sec.19 - amends 18 U.S.C. §3322(a) |
allows civil forfeiture prosecutors access to secret grand jury transcripts in any civil forfeiture case | not in HR 1658 | (worse than current law!) |
| Sec.20 - amends 26 U.S.C.§6103(i)(1) |
allows civil forfeiture prosecutors access to IRS records | not in HR 1658 | (worse than current law!) |
| Sec.21 - amends 19 U.S.C. §1621 |
statute of limitations for civil forfeiture | not in HR 1658 | (worse than current law!) |
| Sec.22 - amends 18 U.S.C. §2232 |
destruction or removal of property to prevent seizure | not in HR 1658 | (worse than current law!) |
| Sec.23 - amends 18 U.S.C. §984 |
fungible property in bank accounts - makes the commingling provisions of §984 applicable to all forfeiture statutes | not in HR 1658 | (worse than current law!) |
| Sec.24 - adds new 21 U.S.C. §881(k) |
currency seized from "drug couriers" - allows court to find cash was proceeds based on packaging, amount, chemicals, drug dog alert, pager/phone numbers on claimant, etc. | not in HR 1658 | (worse than current law!) |
| Sec.25 - adds new 18 U.S.C. §981(e) |
expands government's power to use forfeiture funds to pay restitution to victims -- if they want to | not in HR 1658 | (meaningless change) |
| Sec.26 - adds new 28 U.S.C. §2466 |
fugitive disentitlement - attempts to statutorily overrule the Supreme Court decision of Degen v. United States | not in HR 1658 | (worse than current law!) |
| Sec.27 - adds new 28 U.S.C. §2467 |
mutual enforcement of foreign forfeiture judgments with other countries under mutual forfeiture assistance treaties | not in HR 1658 | (worse than current law!) |
| Sec.28 - adds new 28 U.S.C. §2461(c) |
allows indictments to include a civil forfeiture count, even when there is not correlative criminal forfeiture statute | not in HR 1658 | (expands forfeiture powers far beyond current law) |
| Sec.29 - amends 21 U.S.C. §881(d) |
makes the procedures of 18 U.S.C. §981 (money laundering forfeitures) applicable to drug forfeiture cases; there are some nasty rebuttable presumptions in §981. | not in HR 1658 | (worse than current law!) |
| Sec.30 - adds new 18 U.S.C. §987 |
conforming amendment | not in HR 1658 | (just technical amendments that make no substantive change) |
| Sec.31- amends 8 U.S.C. §1324(b) |
expands INS forfeiture statute to include new classes of forfeitable property & new alien smuggling forfeitable offenses | not in HR 1658 | (expands forfeiture offenses beyond current law) |