Fifth Amendment Integrity Restoration Act of 2017 or the FAIR Act
This bill modifies general rules governing civil forfeiture proceedings to: (1) ensure that a person contesting a civil forfeiture has legal representation without regard to whether the property subject to forfeiture is being used by such person as a primary residence; (2) increase the federal government's burden of proof in civil forfeiture proceedings to clear and convincing evidence; (3) require the government, in addition to showing a substantial connection between the seized property and an offense, to establish by clear and convincing evidence that the owner of any interest in the seized property used the property with intent to facilitate the offense or knowingly consented or was willfully blind to the use of the property by another in connection with the offense; and (4) expand the proportionality criteria used by a court to determine whether a civil forfeiture was constitutionally excessive.
To remove incentives for carrying out civil forfeitures, the bill requires proceeds from the disposition of seized property to be deposited into the General Fund of the Treasury, rather than to Department of Justice accounts for law enforcement activities.
The bill adds a mens rea requirement (i.e., a knowing violation) to the prohibition against structuring financial transactions to evade reporting requirements.
A court shall conduct a probable cause hearing to determine if there is a violation of the prohibition against structuring transactions to evade reporting requirements involving a monetary instrument and to return such instrument if probable cause is not established.