Civil Forfeiture in Criminal Cases

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 What is Asset Forfeiture?

Asset forfeiture is when a government forces an individual to forfeit property which is connected with criminal activities. Asset forfeitures were created by the government and law enforcement to reduce any incentives for illegal conduct by forcing an offender to relinquish their property.

Asset forfeitures remove the profit from criminal activity by eliminating the ability of an offender to command the resources which are typically necessary to continue participating in illegal activities. In addition, asset forfeitures can be an effective means of compensating an innocent victim.

In white collar crimes, specifically, restoring property to an innocent victim is the first priority. In a while collar crime, the most common thing victims have stolen from them is money.

What is Civil Forfeiture?

Forfeiture laws were devised to combat organized crime as well as large-scale drug trafficking. These laws give the government the right to seize, or take, the property of criminals.

Criminal forfeiture laws permit the seizure of property only after an individual is convicted, and their guilt is proven beyond a reasonable doubt. Civil forfeiture laws, on the other hand, allow the government to take possession of an individual’s property without a determination of guilt.

Criminal forfeiture laws only permit the seizure of property following a conviction and, therefore, provide more protections to property owners. Problems often arise related to civil forfeiture because the government is permitted to seize an individual’s assets prior to any charges being filed or an arrest being made.

Because the majority of civil forfeiture proceedings are based on the less clear and convincing standard of proof rather than the beyond a reasonable doubt standard, property may be seized much easier in a civil asset forfeiture than in criminal proceedings. Because of this, civil forfeiture is typically used more often than criminal forfeiture.

In a civil forfeiture proceeding, the government will file a civil legal complaint for the purpose of permanently seizing and forfeiting the specific property which they seek to confiscate. There is no requirement that the government prove guilt, as previously noted.

It is only required to show a sufficient connection between the criminal activity and the property.

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

Yes, even if an individual is not implicated in a crime, a civil forfeiture may be used against them. The property or assets which are seized do not have to belong to the criminal themselves because this type of legal action has more to do with how the property was used in connection with criminal activity than the individual’s guilt.

If property has been used in connection with criminal activity, that property may be subject to civil forfeiture proceedings. Some states, although not the majority of states, offer stronger protections to a third-party property owner.

The majority of states, regardless of innocence or guilt, require that a property owner carries the burden of proving that the property was not associated with criminal activity. The following is a common example of how this may occur in the United States.

Suppose Bob Smith wants to move across the United States, and so he withdraws all of his life savings from his bank. With his $20,000 in hand, Bob begins his drive across the country.

Bob gets pulled over by a police officer who sees the $20,000 in a case in the passenger seat. The police officer assumes that the money came from a drug-related activity and seizes it.

Although Bob has not been charged with any crime, he now has the burden of proving that the cash is not related to any criminal activities.

How Do These Proceedings Work?

In contrast to other types of court proceedings, a victim of an asset seizure under forfeiture laws must prove their own innocence. In most cases, they only have a short period of time, typically 10 days, to initiate proceedings to prove the innocence of their property.

What Kind of Property Can be Seized Under Civil Forfeiture?

Almost any type of property may be seized by law enforcement under civil forfeiture. The most common types of property that are seized include:

  • Vehicles;
  • Cell phones;
  • Jewelry; and
  • Cash.

Some states, including Kentucky, have strict requirements for seizure of real property. These protections, however, are uncommon.

For Which Crimes is Civil Forfeiture Most Often Invoked?

A civil forfeiture is most commonly used in drug cases. The use of civil forfeiture, however, has been expanded dramatically over the past few decades. Civil forfeitures are not being used for crimes that range from prostitution to shoplifting.

What Happens to My Property?

What happens to an individual’s property is one of the most controversial aspects of civil forfeiture. In the majority of cases, the property is sold, and the law enforcement department or the district attorney’s office is permitted to keep the profits generated from the sales.

In some states, laws have been enacted that protect property that was acquired through civic forfeiture and, therefore, reduce the incentive for law enforcement to seize property in the first place. For example, the State of Indiana requires that 100% of the funds go to the common school fund in the state.

There are also other states which have similar laws that prohibit civil forfeiture funds from going to law enforcement offices, including:

  • Maine;
  • Maryland;
  • Missouri;
  • New Mexico; and
  • Wisconsin.

Although most states have much higher numbers, there are a few states which have a limited form of the law. For example, in some states, only 50% of the funds are permitted to go to law enforcement.

Am I Subject To Civil Forfeiture Everywhere?

The majority of states as well as the federal government permit civil forfeiture prior to any conviction and may even occur before an arrest or charge is filed.

It is important to note that states are beginning to reform their civil forfeiture laws in order to provide citizens with more protections for their property. The states which currently require a conviction prior to any criminal forfeiture include:

  • Missouri;
  • Montana;
  • Nebraska;
  • Nevada;
  • New Mexico;
  • New York;
  • North Carolina;
  • Oregon; and
  • Vermont.

There are other states which have opted to keep their laws intact do so because the funds which are seized from property are used for public safety programs and law enforcement resources, including:

  • Computers;
  • Vehicles; and
  • Dogs.

Even though this is the case, it is expected that more states will begin to reform their civil forfeiture laws, as many states have pending legislation in favor of property owners.

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

Yes, it is essential to have the assistance of a criminal defense attorney for any issues, questions, or concerns you may have related to civil forfeiture. Due to the complex nature of these laws and the fact that they vary by state, it is important to consult with an attorney as soon as possible.

In addition, because this is a special area of law, it is important to consult with an attorney who has experience with civil forfeitures. Your attorney can review your case, advise you of the civil forfeiture laws of your state, and represent you if you are required to appear in court.

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