The federal government originally instituted the practice of criminal asset forfeiture as a way to combat crime. It was surmised that the loss of assets would affect the way career criminals conduct their illicit affairs and asset forfeiture worked well for achieving that goal. It worked well enough, in fact, that government agencies have started using a variation of the law to seize assets from other individuals. Here’s a closer look at the law and why it affects more than just criminals.
Civil Asset Forfeiture in a Nutshell
Unlike criminal asset forfeiture, civil asset forfeiture isn’t dependent upon any criminal charges. The police, or other law enforcement agencies, only need to suspect an individual of committing crimes related to drug trafficking or other types of organized crime. Instead of gathering evidence to use against the individual, the government essentially files a lawsuit, naming the property, or assets, as the defendant. The term for this is “in rem” and it allows the government to take the items named in the lawsuit into custody.
Law enforcement can’t just take anything they want, however. They’re required to establish probable cause that the property was used in the commission of a crime. This is done by presenting a “preponderance of the evidence,” meaning evidence cumulatively suggests guilt. This requirement is far less than what is required to obtain a conviction in a court of law, making it easier for law enforcement to seize property than it would be to make a valid arrest. In many cases, the individual is never even charged with a crime, suggesting the seizure has more to do with profit than with enforcing laws.
Once the property is seized, it’s unlikely that the individual will ever have his property returned to him. Even supposing he’s arrested, tried, and acquitted of crimes related to the seizure of the property, the government rarely returns the assets in question. Instead, the property is sold at government auctions and profits from the sales go toward funding the law enforcement agency. Some jurisdictions at the state level may divert funds raised from such auctions toward education and other purposes, but, in most cases, the agency or department responsible for seizing the property keeps the money.
Law Enforcement Cooperation in Civil Asset Forfeiture
In addition to state police departments, federal agencies, such as the F.B.I. and D.E.A., are also authorized in seizing assets. The law, which is established in Title 18, § 981 of the U.S. Code, has been challenged and upheld in the U.S. Supreme Court, indicating that it’s here to stay. That doesn’t mean there aren’t strict rules governing the seizure of assets.
Federal law prohibits agencies from claiming assets whenever they choose. The agency or department must first notify the property owner in writing within a 60 day period preceding the seizure. In many cases, the property owner is able to get an extension on the deadline in court. Additionally, the individual may submit an official challenge against the agency seeking to seize the property. If this occurs, the agency has 90 days to act, either by filing a formal “in rem” civil complaint or by filing criminal charges against the individual.
Unfortunately, the nature of a civil asset forfeiture precludes the right to an attorney. Technically, the action is against the property, not the individual, so the right to counsel isn’t permitted. Courts may make an exception, if the property is the individual’s primary place of residence.
What happens when states and federal agencies clash over property seizures? In July of this year, Attorney General Jeff Sessions introduced plans for an Equitable Sharing Program, which would promote greater cooperation between agencies at the state and federal levels. In circumstances where the seizure of property is the result of state and federal collaboration, the assets will be seized by the federal government, but 80% of profits derived from the sale of the property is returned to the state or local agency.
The proposal is controversial, because it gives local police agencies leverage over the state. For instance, in states where local agencies are prohibited from keeping assets obtained through forfeitures, they need only ask for federal assistance. The federal agency will come in, seize and auction the property, and return 80% of the sale to the local city or county agency, bypassing the state police entirely.
Where asset forfeiture was introduced as a means of fighting crime, recent years have shown that it has become a means of securing funding for agencies. Both state and federal law enforcement organizations have begun to use civil asset forfeiture laws to their advantage, instead of utilizing them for the purposes for which they were created. Fortunately, the requirement of notification gives private citizens some advanced warning, which may be used to plan a defense. By contacting an attorney experienced in challenging asset forfeitures, you may be able to stall or prevent the seizure of your property under forfeiture laws.