What we really need in a forfeiture reform bill – Part 2B: Fixing the holes in CAFRA’s attorney fees provisions

(c) 2015 Brenda Grantland
from Truth and Justice Blog, 3/19/2015

In a previous blog, What we really need in a federal forfeiture reform bill – part 2A, I talked about how the next round of forfeiture reform should repair the gaping holes the courts have gouged into CAFRA’s reforms, particularly those affecting the availability of counsel.  One CAFRA reform that clearly did not hold is the provision requiring the government to pay the attorney’s fees of claimants who substantially prevail.

A Lexis search conducted this week turned up only 23 reported civil forfeiture cases in which CAFRA fees were granted, and 8 civil forfeiture cases where CAFRA fees were denied.  And that was for the entire 15 years since CAFRA was enacted.  That is less than two cases per year! Tens to hundreds of thousands of federal civil forfeiture cases have been litigated in that 15 year period.

Clearly CAFRA’s fee-shifting provisions did not work as planned.  This is another of CAFRA’s reforms that the government has effectively nullified in practice, persuading  courts to interpret the statutes restrictively and illogically to avoid awarding  fees.


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What we really need in a forfeiture reform bill – part 2A: CAFRA’s attorney’s fees provisions

(c) 2014 Brenda Grantland
from Truth and Justice Blog, 11/19/2014

CAFRA’s attorney’s fees provisions have been eviscerated by the courts; this must be fixed

In my last few blogs about forfeiture reform I told you about CAFRA’s court appointed counsel provisions, allowing some indigent claimants to be appointed lawyers at the government’s expense.

Congress also created “fee shifting” provisions in CAFRA, created to encourage defense attorneys to take on civil forfeiture cases where the claimant was not completely indigent but probably lacks enough money to litigate the case to completion. CAFRA’s fee shifting provisions require the court to order the government to reimburse the claimant for their reasonable attorneys fees if the claimant “substantially prevails.” This sounded like a great provision when the law was first passed, but after a few years it was gutted by court decisions and prosecutor shenanigans.

As a general rule, litigants in the United States must pay for their own attorneys whether they win or lose the case. This is called the “American Rule” – as opposed to the “English rule,” where the losing party pays the winning party’s attorney’s fees as well as his own. There are exceptions to this rule. Congress has enacted over 100 “fee shifting statutes” which create exceptions to the American Rule,  requiring the losing party to pay attorney’s fees of the adversary – several of which apply to forfeiture claimants. Under fee-shifting statutes, the court can – or in some situations, must (though they often don’t) – make the loser pay the winner’s attorney’s fees.


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