Civil vs. Criminal Forfeiture: Key Differences

Civil vs. Criminal Forfeiture: Key Differences

Criminal Forfeiture

Criminal forfeiture occurs after someone has been convicted of a crime. It is imposed as part of a defendant’s sentence and is considered punishment for the offense. For example, if someone is convicted of a drug crime, the government may seize cash, vehicles, or real estate that was used to facilitate the drug activity.

Because criminal forfeiture follows a criminal conviction, the government must prove its case “beyond a reasonable doubt” – the highest standard of proof in the legal system. This helps protect innocent property owners from losing their assets without strong evidence of criminal wrongdoing.

Criminal forfeiture also has other due process protections for property owners. They have the right to challenge the forfeiture during their criminal case and to have a lawyer represent their interests.

Civil Forfeiture

In contrast, civil forfeiture does not require a criminal charge or conviction against the owner of the property. The government only needs to demonstrate by a “preponderance of the evidence” that the property was used to facilitate a crime or represents illicit proceeds.

This lower evidentiary standard makes it easier for law enforcement to seize assets through civil forfeiture. And because it is a civil proceeding, property owners do not have the same constitutional rights as criminal defendants – like the right to an attorney if they cannot afford one.

According to the Drug Policy Alliance, over 80 percent of forfeitures occur civilly. Police and prosecutors often prefer civil forfeiture because it allows them to take property without needing to convict someone of an underlying crime.

Burden of Proof

The different burdens of proof are a major distinction between civil and criminal forfeiture. As mentioned, the government’s burden is much lower in civil forfeiture cases:

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• Criminal forfeiture: Beyond a reasonable doubt
• Civil forfeiture: Preponderance of the evidence

“Beyond a reasonable doubt” is the highest burden and requires around 95-99% certainty. “Preponderance of the evidence” simply means that it is more likely than not (51% or more certainty) that the property was involved in illegal activity.

This lower burden makes it much easier for prosecutors to succeed in civil forfeiture actions. And since most forfeitures are civil, critics argue that the system is heavily weighted in the government’s favor at the expense of property rights.

Legal Protections

Along with the lower burden of proof, civil forfeiture cases provide fewer legal protections for property owners:

• No right to an attorney if the owner can’t afford one
• No presumption of innocence for the property
• No right against self-incrimination for the owner

Unlike criminal defendants, owners defending against civil forfeiture do not have the right to have an attorney appointed if they cannot afford one. And since civil forfeiture is brought against the property itself, it technically has no constitutional rights, even though taking the property affects its owner.

Government’s Legal Basis

Civil and criminal forfeiture also differ in terms of the legal authority used to justify the seizures:

• Criminal forfeiture – Part of a criminal sentence against the property owner
• Civil forfeiture – Based on the legal fiction that the property itself is “guilty” of facilitating crime

Criminal forfeiture is authorized as part of the government’s power to punish criminals. But civil forfeiture relies on the legal idea that property can be “guilty” even if its owner is not convicted or charged with a crime. This theory has been criticized for violating basic principles of due process and property rights.

Disposition of Forfeited Assets

There are also differences in what law enforcement agencies can do with assets seized through civil versus criminal forfeiture:

• Criminal forfeiture – Assets go to the federal government or general fund of the state that prosecuted the owner
• Civil forfeiture – Seizing law enforcement agency often keeps some or all of the value of forfeited property

Allowing agencies to keep forfeiture proceeds for their own use has been cited as one reason usage of civil forfeiture vastly outpaces criminal forfeiture. Critics argue that it incentivizes policing for profit over legitimate law enforcement goals.

There have been some reforms enacted to direct more civil forfeiture assets to general funds rather than law enforcement budgets. But most still believe agencies have too much financial incentive to pursue civil forfeiture under current state and federal laws.

Summary

In summary, while both are potent weapons against crime, important distinctions exist between civil and criminal forfeiture:

• Burden of proof – Much lower for civil forfeiture
• Due process protections – Greater for criminal defendants
• Government’s legal basis – Criminal punishment vs. property “guilt”
• Disposition of assets – More oversight with criminal forfeiture

Understanding these differences is important for reform advocates seeking to limit abuses of civil forfeiture while preserving criminal forfeiture as a proportional punishment for convicted criminals.