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Asset Forfeiture

You can use criminals' ill-gotten gains to help fund your department's war on crime.

February 12, 2010  |  by Joseph Petrocelli - Also by this author

The demands on police have never been higher. Departments are expected to provide a wide array of protections and services and divergent groups expect excellent police service. As other social services are cut, police are forced to deal with an ever expanding litany of problems. And police departments are being forced to do all this on smaller budgets.

The frustration of being asked to do more with less is multiplied when police see the resources available to criminals. Illegal activities generate huge amounts of untaxed incomes, and criminals may flaunt gains with an extravagant lifestyle while also re-investing in their criminal enterprises.

You may have found yourself wondering, "Where can we find the funds necessary to fight such a well-equipped enemy?" One answer is to take the funds from the criminals.

Applicable Laws

Asset forfeiture laws allow for the seizure of property connected with criminal activity. With the proper law enforcement steps, this seized property can eventually be subject to forfeiture.

While primarily designed to weaken criminal organizations by striking at their economic foundation, as an ancillary effect these laws have allowed police departments to generate revenue from the seized assets. These revenues have then been repurposed to fight the war on crime. As we all know, fighting crime, specifically drugs, is time-consuming, labor intensive, and expensive. Forfeiture can help your agency offset these costs.

Asset forfeiture allows for the seizure of any property obtained through ill-gotten gains. All contraband is subject to forfeiture. Being that no one can legally own contraband, no one can make a legal claim to it. Property is also subject to forfeiture if it is the proceeds of criminal behavior or is used in a criminal endeavor. Not only is contraband subject to forfeiture, but any items that were obtained through criminal activity can also be forfeited.

"Derivative contraband" describes legal items that are closely connected to illegal activities. Examples include scales for weighing drugs and motor vehicles with hidden compartments. These items used to facilitate crime can be confiscated if they are "used or intended to be used in any manner or part to commit or facilitate the commission of a violation" (21 U.S.C. 881(a)(7).

Criminal and Civil Forfeiture

There are several different types of asset forfeiture available, but law enforcement agencies generally use one of two methods: criminal forfeiture and civil forfeiture.

Criminal forfeiture accompanies a criminal conviction. If a convicted person's property was the fruits of criminal behavior, the property can be seized. This type of forfeiture is less common than civil forfeiture for several reasons. One reason is the burden of proof is higher in a criminal case (beyond a reasonable doubt) than in a civil case (preponderance of the evidence). Also, for a criminal forfeiture to take place, it must be listed as a sentencing sanction in the criminal statute.

In a civil forfeiture case the government only has to prove (by the preponderance of the evidence) that the item was used or obtained illegally. To seize an item, the government must show a "substantial connection" between the item and criminal activity. Most agencies find civil forfeiture the easier path. It has been estimated that more than 85 percent of civil forfeitures are not accompanied by criminal charges.

CONTINUED: Asset Forfeiture «   Page 1 of 3   »

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