What we really need in a forfeiture reform bill- part 1B: Appointment of counsel for indigent claimants

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

Appointment of counsel for indigent claimants, part 1B

Yesterday I blogged about the CAFRA provisions which either authorize or require appointment of counsel for civil forfeiture claimants who are indigent, in two very narrow categories of cases, and how they are not being implemented.

Before I go on to part 2 of my list of demands for effective forfeiture reform, I wanted to show you how far short of CAFRA’s goals for providing court appointed counsel — to at least some categories of indigent forfeiture claimants — the actual practices of the courts currently are.

Congress clearly thought the appointment of counsel was very important. This is what the Committee Report of the Committee for the Judiciary said about bill H.R. 1658:


There is no Sixth Amendment right to appointed counsel for indigents in civil forfeiture cases, since imprisonment is not threatened. This is undoubtedly one of the primary reasons why so many civil seizures are not challenged. As the cochairs of the National Association of Criminal Defense Lawyers’ Forfeiture Abuse Task Force stated before this Committee in 1996: ‘‘The reason they are so rarely challenged has nothing to do with the owner’s guilt, and everything to do with the arduous path one must journey against a presumption of guilt, often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle.’’ This Committee believes that civil forfeiture proceedings are so punitive in nature that appointed counsel should be made available for those who are indigent, or made indigent by a seizure, in appropriate circumstances. H.R. 1658 provides that a federal court may appoint counsel to represent an individual filing a claim in a civil forfeiture proceeding who is financially unable to obtain representation. In determining whether to appoint counsel, the court shall take into account the claimant’s standing to contest the forfeiture and whether the claim appears to be made in good faith or to be frivolous. Compensation for appointed counsel will be equivalent to that provided for court-appointed counsel in federal felony cases. Currently, maximum compensation would not exceed $3,500 per attorney for representation before a U.S. district court and $2,500 per attorney for representation before an appellate court. These maximums can be waived in cases of “extended or complex” representation where “excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.”


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