Criminal Defense Lawyers

How Asset Forfeiture Works: An Overview

How Asset Forfeiture Works: An Overview

A Brief History of Asset Forfeiture

Civil asset forfeiture laws have existed in some form since the country’s founding. But the practice really took off in the 1980s, when Congress passed laws designed to crack down on drug trafficking and organized crime by targeting their profits and assets.Two federal laws in particular turbocharged asset forfeiture:

• The Comprehensive Crime Control Act of 1984, which expanded federal forfeiture and allowed state and local police agencies to share in the proceeds of federal forfeitures.
• The Anti-Drug Abuse Act of 1986, which established the Department of Justice’s Asset Forfeiture Fund to collect the proceeds of federal forfeitures.

These laws gave state and local police a direct financial incentive to aggressively pursue forfeitures, since they could keep up to 80 percent of the assets seized under federal law. Asset forfeiture became a lucrative revenue stream for police departments around the country.  1

How Asset Forfeiture Works

There are two main types of asset forfeiture proceedings:

Criminal Forfeiture

Criminal forfeiture occurs after someone has been convicted of a crime. The judge can order the forfeiture of any assets connected to that crime as part of the defendant’s sentence.Criminal forfeiture requires the higher standard of “beyond a reasonable doubt.” But criminal cases tend to take longer, and defendants can hide or transfer assets before conviction.

Civil Forfeiture

With civil forfeiture, law enforcement can seize assets without charging anyone with a crime. The legal case is filed against the property itself on the theory that it was involved in criminal activity.Because civil forfeiture doesn’t require criminal conviction, the legal standard is much lower—law enforcement only needs “probable cause” to believe an asset is linked to illegal activity.Civil forfeiture proceedings also tend to happen much faster than criminal cases, making it harder for defendants to conceal assets.  2

What Kind of Assets Can Be Forfeited?

Law enforcement uses asset forfeiture to seize many types of property, including:

• Cash – Bulk cash seizures are one of the most common types of civil forfeiture. Police claim the money is connected to drug trafficking or money laundering. Critics argue it’s too easy for police to seize cash during routine traffic stops.  3
• Cars and trucks – Vehicles allegedly used to transport drugs or purchased with drug proceeds are frequent targets for forfeiture. Local police auctions often sell off forfeited cars and trucks.
• Boats and airplanes – Police also seize expensive vehicles like yachts and private jets that they say are tools or proceeds of high-level drug smuggling.
• Houses – Real estate can be seized if police suspect it was bought with laundered money or used for drug activity. This sometimes happens in federal cases against major drug rings.
• Other valuables – Jewelry, art, antiques, and collectibles are also vulnerable to forfeiture if cops think they were obtained illegally.

Controversies Around Asset Forfeiture

While asset forfeiture remains an important law enforcement tool, its abuses have led to bipartisan calls for reform. Some of the biggest criticisms include:

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• Policing for profit – Critics argue asset forfeiture has turned into policing for profit, creating dangerous incentives for law enforcement. Police and prosecutors can directly benefit from forfeiture proceeds, which risks corrupting their priorities.  4
• Circumventing due process – Asset forfeiture allows cops to seize property without charging anyone with a crime, leading to accusations that it skirts constitutional protections. The burden is on owners to prove assets are “innocent,” not on cops to prove guilt.
• Disproportionate impact – Low income individuals and communities of color are often disproportionately targeted for forfeitures. They lack the resources to fight back in court. Forfeitures can devastate innocent people.  5
• Lack of transparency – Many states don’t track or report forfeiture activity, so its hard to assess the scale of abuses. More transparency and accountability are needed.
• Policing incentives – Critics argue forfeiture incentives distort law enforcement priorities. Police focus on pursuing lucrative assets rather than public safety. There are also reports of highway police profiling drivers and searching for reasons to make stops in order to seize cash and other assets from motorists.

Reforming Asset Forfeiture Laws

In response to criticisms, many states have passed reforms such as:

• Requiring criminal conviction before forfeiture
• Banning state and local police from using federal forfeiture process
• Raising the standard of proof for civil forfeiture
• Improving reporting to increase transparency
• Limiting how police can use forfeiture proceeds

But reform advocates say more protections are still needed at both federal and state levels to prevent abuses.

The Future of Asset Forfeiture

Asset forfeiture remains deeply controversial today. But it also remains an entrenched part of the legal system, with staunch defenders in law enforcement.Police and prosecutors say asset forfeiture is vital for disrupting drug cartels and organized crime by targeting their illicit profits. They argue controls exist to prevent abuses, and that examples are rare.However, media outlets continue to report troubling cases of forfeiture being misused, often against low income and minority individuals. Critics respond that relying on asset forfeiture to fund law enforcement warps priorities and incentives no matter how carefully controls are crafted.The debates over balancing law enforcement powers versus civil liberties will likely continue. But the controversies surrounding asset forfeiture don’t seem to be going away anytime soon.

Conclusion

Asset forfeiture is a powerful legal tool that allows law enforcement to seize property allegedly tied to criminal activity. But it’s also controversial. Critics argue it promotes policing for profit, invites abuse, and punishes innocent property owners.Reforms have aimed to curb abuses while preserving asset forfeiture as a way to fight organized crime. But striking the right balance remains a tricky issue at both state and federal levels. This ongoing debate illustrates the tensions between protecting public safety and civil liberties that are at the heart of our legal system.

Sources

 https://www.washingtonpost.com/sf/investigative/2014/10/11/asset-seizures-fuel-police-spending/

 https://www.justice.gov/afp/types-federal-forfeiture

 https://ij.org/press-release/new-report-finds-civil-forfeiture-rakes-in-billions-each-year-does-not-fight-crime-2/

 https://www.aclu.org/issues/criminal-law-reform/reforming-police/asset-forfeiture-abuse

 https://www.prisonpolicy.org/blog/2020/06/10/forfeiture/https://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2020/03/state-reforms-reverse-harmful-effects-of-civil-asset-forfeiture