FAIR Act

Fifth Amendment Integrity Restoration Act of 2019 or the FAIR Act

This bill revises the procedure for and the structure of civil forfeiture.

First, the bill revises the general rules for civil forfeiture proceedings. Specifically, it (1) requires the right to counsel in all civil forfeiture proceedings, (2) raises the evidentiary standard to clear and convincing evidence for the civil forfeiture of property, (3) requires the government to establish by clear and convincing evidence that the owner of the seized property used the property with the intent to facilitate the criminal offense or knowingly consented or was willfully blind to its use in connection with the offense, and (4) expands the proportionality criteria used by a court to determine whether a civil forfeiture was constitutionally excessive.

Next, it requires the proceeds from the disposition of seized property to be deposited into the Treasury, rather than to Department of Justice accounts for law enforcement activities.

Additionally, the bill eliminates equitable sharing payments (which allow the federal government to share federally forfeited property with participating states and local law enforcement agencies).

It also adds a mens rea requirement (i.e., a knowing violation) to the prohibition against structuring financial transactions to evade reporting requirements. Further, it requires a probable cause hearing to be held within 14 days to determine if there is a violation for structuring financial transactions to evade reporting requirements, and requires the return of a monetary instrument if probable cause is not established.