Civil Forfeiture in Criminal Cases

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What is Civil Forfeiture?

Devised to combat organized crime and large scale drug trafficking, forfeiture laws allow the government to take the property of criminals. Criminal forfeiture laws allow the seizure of property only after a conviction beyond a reasonable doubt. Civil forfeiture laws allow the government to gain possession of a person's property without any determination of guilt.

Criminal forfeiture laws allow the seizure of property only after a conviction, and thus, provides more protection to property owners. Civil forfeiture problems often arise because the government can seize assets before any charges are filed or an arrest is ever made. 

Since most civil forfeiture proceedings are guided by the lesser "clear and convincing" standard of proof--rather than "beyond a reasonable doubt"--property can be seized much easier than in criminal proceedings.  As a result, civil forfeiture is often utilized more than criminal forfeiture.

Even if I Am Not Implicated in a Crime, Can Civil Forfeiture Be Used against Me?

Yes. The property seized does not have to belong to the criminal because the legal action has more to do with how the property was used in connection to crime than with a person’s guilt.  If the property has been used in association with criminal activity, the property is subject to civil forfeiture proceedings.

Although not the majority, some states offer stronger protections to third party property owners. But most, regardless of innocence or guilt, require the property owner to carry the burden of proving the property was not associated with criminal activity. Here’s a common example that can happen here in the U.S.

"Timothy Jones wants to move across the country and withdraws his entire life savings from his bank. With his $19,000 cash in hand, Timothy begins to drive across the country. He gets pulled over and the police officer sees the $19,000 in cash in the passenger seat and assumes the money is from a drug-related transaction and seizes it. Although Timothy has not been charged with any crime, Timothy has the burden of proving the cash is not related to any criminal activity." 

How Do These Proceedings Work?

Unlike other court proceedings, victims of asset seizure under forfeiture laws have to prove their own innocence, and have a very short time, usually 10 days, to initiate proceedings to prove their property's innocence.

What Kind of Property Can Be Seized Under Civil Forfeiture?

Unfortunately, almost any kind of property can be seized by the police under this property. The most common types of property seized are vehicles, cell phones, jewelry and cash. Some, like Kentucky, have stricter requirements for seizure of real property. However, such protections are uncommon.

For Which Crimes Is Civil Forfeiture Most Often Invoked?

Civil forfeiture is most common in drug cases. However, the use of civil forfeiture has expanded dramatically over the past few decades. Civil forfeiture is now being used against crimes ranging from prostitution to shoplifting.

What Happens To My Property?

This is the most controversial aspect of civil forfeiture. In most cases, the property is sold and the police department and/or the district attorney’s office keep the funds generated from the sales.

Some states have enacted laws that protect property acquired through civil forfeiture and, therefore, reducing any incentive for law enforcement to seize property in the first place.  For example, Indiana requires 100% of the funds go to the State’s common school fund. 

Maine, Maryland, Missouri, New Mexico, and Wisconsin all have similar laws that prohibit civil forfeiture funds to go to law enforcement offices.  Although the majority of states have much higher numbers, a few of the states have a limited form of the law, for example where only 50% of the funds can go to law enforcement.

Am I Subject To Civil Forfeiture Everywhere?

The majority of states and the federal government allow civil forfeiture prior to any conviction and that can even mean before an arrest or charge is filed.

Luckily, states are beginning to reform their civil forfeiture laws in order to afford citizens more protection for their property. The states that currently require convictions prior to any forfeiture (in other words, criminal forfeiture) are: Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, Oregon, and Vermont.

Other states that have opted to keep their laws do so because the money from seized property is used for public safety programs and police resources, such as computers, dogs, and cars. Even so, expect to see more and more states following the footsteps of the states that have chosen to reform their civil forfeiture laws, as many of them have pending legislation in favor of property owners.

Should I Consult a Defense Attorney if My Property Has Been Seized?

Because of the complicated nature of this area of law, the advice of a criminal defense attorney can be helpful in these cases. Additionally, this is a special area of law and it is advisable that one finds an attorney with specific experience in these proceedings for the most favorable outcome.

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Last Modified: 02-29-2016 11:22 AM PST

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