This significantly changes what must be proved. Under the existing law, if the government's theory of forfeiture is that the property was used to commit or facilitate the commission of a crime, they must show by a preponderance of the evidence that there was a substantial connection between the property and the offense.

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

Note that under the current wording, if you had, say, a boat owned by three people who take turns with it (e.g., one owner runs the boat during the winter fishing crab, one runs the boat during part of the summer doing salmon tendering, and one takes people on whale watching trips), and one of the owners is also using it for smuggling, then the boat could be seized, but the two other owners would keep their interest as innocent owners. The net result would be the government would end up as partial owner of the boat.

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.