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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What we really need in a forfeiture reform bill- Part 1A: Provisions to improve availability of counsel

(c) 2014 Brenda Grantland
Truth and Justice Blog, 11/10/2014

As I said in earlier blogs, the pending federal forfeiture reform bills don’t go far enough.

What we really need in federal forfeiture reform legislation is to plug up the loopholes prosecutors and courts have created in the CAFRA 2000 reforms, and to expand the protections to third parties in criminal forfeiture cases.

Here are my major recommendations. I will talk about them in more detail in later blogs.

Provisions to improve availability of counsel

The impediment that most often prevents claimants from having a fighting chance in court is their inability to hire a lawyer to represent them.  Some claimants were indigent in the first place, but quite often claimants had substantial assets until the government seized all of them, or so much of them that they don’t have enough left to litigate their forfeiture cases to completion.

The Constitution’s Fifth Amendment and Due Process clauses should prevent the government from taking private property and depriving the property owner of the means to defend it, especially since forfeiture – be it civil or criminal forfeiture – is punishment (implicating the Eighth Amendment).


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How our criminal justice system got so out of whack

(c) 2013 Brenda Grantland
reprinted from Truth and Justice Blog, 11/22/2013
When I graduated law school and began my legal practice I had starry eyed notions about the adversary system and believed that it really worked the way it was supposed to.

On the one side there was a relatively conscientious and ethical prosecutor and the other side a relatively conscientious and ethical defense attorney, with a judge who would be relatively fair and unbiased and would follow the law most of the time.

Theoretically these systems would all mesh together into a system of checks and balances that should ensure that citizens are treated fairly and ethically by the criminal justice system, and that the results are equitable under the true facts and established law.

But it doesn’t work that way in real life.

After three decades practicing law, mostly in the criminal justice and asset forfeiture system, with the federal government as my opponent, I can see the system is way out of whack. It’s even worse under state law, where fundraising through lucrative asset forfeiture cases is used to supplement budget shortfalls.

Asset forfeiture has corrupted the criminal justice system and disrupted the system of checks and balances that previously kept law enforcement corruption and unjust prosecutions more or less under control.


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