There is an "innocent owner" defense that protects the interests of innocent owners to the property. For property interests that were in existence at the time of the illegal acts, an innocent owner is one who did not know of the acts giving rise to forfeiture, or who upon learning of those acts did all that could be reasonably expected under the circumstances to terminate that use of the property. For an interest that acquired after the illegal conduct, an innocent owner is someone is a bona fide purchaser who did not know that the property was subject to forfeiture.

Paul's bill changes the requirement when the government's theory of forfeiture is that the property was use to commit or facilitate a crime to this, and modifies the innocent owner defense to get rid of the parts of it that are redundant in light of these changes:

   (3) if the Government’s theory of forfeiture is that
       the property used to commit or facilitate the commission
       of a criminal offense, or was involved in the commission
       of a criminal offense, the Government shall establish,
       by clear and convincing evidence, that—

       (A) there was a substantial connection between the property
           and the offense; and

       (B) the owner of any interest in the seized property—

        (i) intentionally used the property in connection with the
            offense; or

        (ii) knowingly consented or was willfully blind to the use
             of the property by another in connection with
             the offense

Under the new language, it looks like the government has to show that all the owners were involved with, consented to, or were "willfully blind" to the smuggling. It does not define "willfully blind".

This seems to be a huge loophole. It should not be too hard for criminals to arrange for their major assets they use in their crimes (boats, planes, cars, real estate) to have a minority co-owner not connected to the crime and who has no idea the property is being used for crime and was not "willfully blind" to such use.

Or maybe not...I'm reading (3)(B) as saying that all the owners must be shown to meet (i) or (ii), but it may be possible to read it as meaning that at least one owner must meet (i) or (ii). This section needs to be rewritten.

Allowing criminals to keep the proceeds of crimes also creates horrible incentives.

It's the new Jim Crow.

" Asset forfeiture practices often go hand-in-hand with racial profiling and disproportionately impact low-income African-American or Hispanic people who the police decide look suspicious and for whom the arcane process of trying to get one’s property back is an expensive challenge. ACLU believes that such routine “civil asset forfeiture” puts our civil liberties and property rights under assault, and calls for reform of state and federal civil asset forfeiture laws."

Probably not designed to have that effect, but it does.

* at least at the city level this is true; I review all the civil forfeiture requests made by a city and every affidavit contains a copy of said notification.

Or you're saying ownership wouldn't be lost by anyone?

In fact, forfeiture is often used as bribery - let us keep your stuff and we won't make your life even harder, which even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with. Often, taking away your kids is threatened if you don't let us keep your car.

I'm not going to toss myself out there as Rand Paul's biggest supporter, but he gets my absolute support (and my phoning of my representatives urging their support) of this bill.

[1] http://www.newyorker.com/magazine/2013/08/12/taken

For more, see "No One Is Innocent": http://marginalrevolution.com/marginalrevolution/2013/06/no-... . I think this part is particularly relevant:

Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law.

Everyone intuitively knows that you shouldn't hit, kill, or rob someone else, but there are now innumerable nominal "crimes" that are neither obvious nor intuitive.

[1] http://online.wsj.com/news/articles/SB1000142405274870447150...

http://skeptics.stackexchange.com/q/22530

TL;DR: the examples available in the Amazon excerpts from that book are all felonies which the "average adult" would not be involved in, certainly not multiple times a day. (Unless you lead a very eventful life.)

In a day and age when ATMs routinely dispense $300/day this is quite absurd.

I'm opposed to the scope of civil asset forfeiture as its applied in many cases. That said, the "parade of horribles" is overblown, and contraband has always been subject to forfeiture.

Why?

Because it's devastating to my case!

Please explain.

https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...

We will soon take on the task of true verification though. Which means, bouncing your registration details against a voter id database.

edit: A number of people point out forfeiture can occur without a conviction or even a crime being charged. This reform doesn't change that. It changes the burden of proof from preponderance of evidence to clear and convincing evidence (and addresses some of the perverse financial incentives). These are both less strict than "beyond a reasonable doubt", which applies in criminal proceedings. (See watwut's link to Burden of Proof below.)

What I'm saying is this reform is weak, and it would be better to treat forfeiture like any other criminal penalty.

In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime.

Both are legal definitions. Convenient wiki: http://en.wikipedia.org/wiki/Legal_burden_of_proof

> In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime.

It looks like that isn't changing under this reform.

Which would seem to be one of the worse problems with current law, no?

The money, at least a large cut of it, goes to the municipality that siezed the property. In some small towns this is abused to fund their city government.

http://en.wikipedia.org/wiki/United_States_v._$124,700_in_U....

A 2010 report by the Institute for Justice: http://ij.org/policing-for-profit-the-abuse-of-civil-asset-f...

A 2008 report by the DOJ which makes some surprising admissions: http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeitur...

1) an army of civil rights defense attourneys to counter the DOJ, DHS, etc.

2) a force of federal agents who have the authority to interefere with any federal, state or local law enforcement activity, but completely lack the ability to touch citizens. Their sole mission would be to detain law enforcement officers suspected of abusing their power, raid illegaly acquired/held state confiscation staches, liberate detained civilians, confiscate/destroy/release government secret records, interfere with unlawful border patrol, and execute on the spot any law enforcement agent caught in the act of violating person's civil liberties.

They will watch the watchmen.

Yeah, there's no way that could go wrong.

Surely this rule would create a rather suicidal agency? Or is due cause no longer a civil liberty?

However, I've always thought that judicial system is a mean to check the legislative branch (rather than executive). The reasons being that judicial system has no mean to enforce/ prevent wrong doing (legislative can cut funding), and they also have no way to proactive prevent any wrong doings from happening (you can't do investigation, and anything that reaches the court necessitates a lawsuit).

The only "department of liberty" is you, and me, and other citizens. We're sovereign under the U.S. system of law; empowered to make change in a variety of ways.

But we have to do it. There's no way around the fact that a democracy is only as good as its citizen activism. There are some things you can't outsource or delegate.