Asset Forfeiture

The concept of asset forfeiture allows law enforcement to seize assets connected with perpetrating a crime and liquidate the assets to be used toward something positive, such as employing additional personnel to help deter drug dealers. Prior to asset forfeiture laws, criminals would serve relatively short sentences, and after release from prison, they would continue to enjoy their illegal fortunes. For example, after serving a sentence in federal prison, Al Capone was able to return to living in his mansion in Florida. A more recent example is Pablo Escobar, the notorious cocaine trafficker, who served a jail sentence while living on a mountaintop estate in Colombia. While serving his sentence, he operated, supervised, and financed his criminal cartel, even arranging killings while living in seclusion surrounded by luxuries.

The “War on Drugs,” crime, and terrorism demands a substantial law enforcement commitment in terms of adequately trained personnel and physical assets. Financial requirements prove considerable, and can strain federal, state, and local budgets. Asset forfeiture is an important way to replenish revenue reservoirs for the fight against drugs, crime, and terrorism. The practice can be very lucrative, often leaving police agencies solvent and without the need to seek additional funding.

Asset forfeiture is classified in two forms: civil and criminal. There are substantial differences between civil and criminal forfeiture. Civil forfeiture represents the majority of forfeitures, while criminal forfeiture serves as punishment for a criminal act and requires a conviction. Seizures of financial assets serve as part of the punishment for the convicted criminal.

Civil Forfeiture

Civil forfeiture is remedial; the government's motive is to remedy harm by acting civilly and placing fictional blame or guilt on a property or asset because of its connection to an illegal act. Federal level administrative forfeiture requires probable cause, under the authority vested in 19 U.S.C. § 1607. Civil forfeiture rests on a fictional premise that the property or asset is responsible for the violation, not the asset's owner. Therefore, the asset is guilty and targeted for prosecution and confiscation. Unlike criminal forfeiture, civil forfeiture does not require conviction of the individual who maintains ownership of the property or asset. Officers present the warrant or publicly announce the forfeiture in the print media, then seize the property. The burden of proof is on the owner once the government establishes probable cause and the standards of proof are lower in civil forfeiture cases than in criminal cases.

In one 2006 operation, the Drug Enforcement Administration seized this sailboat along with almost $70 million in other assets.

Civil forfeiture draws public scrutiny, especially from citizens concerned about possible ramifications regarding the loss of protections under the U.S. Constitution. In civil proceedings, the government needs to prove a lesser burden of proof: “a mere preponderance of the evidence.”