From Wikipedia, the free encyclopedia Asset forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets proceedings. However, this is not an absolute rule since
which are either (a) the alleged proceeds of crime or (b) many jurisdictions also allow private individuals to initi-
the alleged instrumentalities of crime, and more recent- ate criminal prosecutions.
ly, alleged terrorism. Instrumentalities of crime are prop- The bringing of civil proceedings is, by comparison,
erty that was allegedly used to facilitate crime, for exam- primarily the forum for a wronged private individual.
ple cars allegedly used to transport illegal narcotics. The Nevertheless this too is not an absolute position, as the
terminology used in different jurisdictions varies. Some state also may sue in the civil courts as a wronged indi-
jurisdictions use the term "confiscation" instead of for- vidual, for example, in respect of a contractual dispute
feiture. In recent years there has been a growing trend with a multinational company. Civil law does not aim to
for countries to introduce civil forfeiture and such pro- punish, but rather is designed to provide two types of
ceedings may be brought in the USA, Australia, the UK, remedy. Firstly, it provides a remedy requiring a return
Ireland, Italy, South Africa, various Canadian Provinces to the way things were, the status quo ante, so as to re-
and Antigua. store the position of an injured party. Secondly, it pro-
vides a remedy to compensate an injured party for harm
Issues done to him.
While the traditional view of civil and criminal pro-
Proponents of seizure suggest that it is a necessary tool ceedings might be described as neighboring countries di-
to prevent drug trafficking or other crimes. "Asset forfei- vided by a common border, this dichotomy is not as dis-
ture is a law enforcement success story" [1]. Statistics in- tinct as that metaphor might suggest. In recent years
dicate that asset forfeiture has failed to prevent metham- there has been a growing homogeneity between criminal
phetamine drug crime in South Africa [2]. Former United and civil procedures. Criminal cases now often involve
States president George H. W. Bush said, "[Asset forfei- civil, or quasi-civil, procedures and some civil litigation
ture laws allow [the government] to take the alleged ill- has become quasi-criminal. Indeed it has been said that
gotten gains of drug kingpins and use them to put more almost every attribute associated with the criminal law
cops on the streets." also appears in civil law and vice versa. This “significant
disintegration of the wall between criminal and civil pro-
Legal ceedings” has occurred on a number of fronts and is due,
at least in part, to the fact that multiple strategies are
now used to deal with crime. An early example was the
The civil law/criminal law distinction use of injunctions to protect victims of domestic vio-
Most legal systems distinguish between the criminal and lence, even though, to obtain such an injunction, the
the civil, generally using separate courts, different proce- plaintiff may be alleging the commission of a criminal as-
dures and different evidential rules. The traditional view sault. Rather than the traditional dichotomize perspec-
is that crimes are public wrongs and that the criminal law tive therefore, legal proceedings might be better seen as
addresses those who harm society through morally cul- a continuum, with distinctly civil proceedings at one end
pable acts in order that punishment may be imposed and and clearly criminal proceedings at the other. Between
potential offenders may thereby be deterred from com- the two ends of the continuum are a range of possibili-
mitting similar offenses. Criminal proceedings are there- ties, each of which may be more or less criminal or civil.
fore “officially designated ceremonies of guilt designa-
tion” and the label “criminal” carries with it a social stig- The trend towards civil forfeiture
ma, which is not imposed on the losing party in a civil
The traditional approach to serious criminality has been
action. Because of this stigma and the potential punish-
arrest, followed by the institution of criminal proceed-
ment, which may be imposed by a criminal court, legal
ings with a view to conviction and imprisonment. In re-
systems provide procedural protections above those
cent years a confiscation or forfeiture element has been
available to a respondent in a civil case. For example,
added to the criminal process in many jurisdictions. The
criminal proceedings require a standard of proof. In the
US President’s Commission on Organized Crime argued
civil proceedings against Simon Prophet [3] no evidence
for a broader response than a solely criminal one in 1986:
was presented by the state to the courts. The court’s de-
"To be successful, an attack on organized crime in our
cision to deprive Prophet of his home was based solely
mainstream economy cannot rely solely on the enforce-
on affidavits. Generally it is the state that brings criminal
ment of federal criminal laws…The Commission believes
1
From Wikipedia, the free encyclopedia Asset forfeiture
that a strategy aimed at the legitimate economic base of ages around $1 billion worth of property. The United
organized crime must build upon the recent successes States Treasury Department is responsible for managing
of law enforcement, and must be based upon interven- and disposing of properties seized by Treasury agencies.
tion measures as broad-based as the nature of the threat The goal of both programs is to maximize the net return
posed by organized crime. A strategy in this area should from seized property by selling at auctions and to the pri-
also rely upon civil and regulatory measures tailored to vate sector and then using the property and proceeds for
the specific problems confronted..." law enforcement purposes.
Although most prevalent in the USA, jurisdictions A form of asset forfeiture is roadside forfeiture during
that have introduced civil forfeiture legislation include a vehicle stop. Usually enforcing State policies by High-
Italy, South Africa, Ireland, the United Kingdom, Fiji, the way police, local law enforcement have built up seized
Canadian Provinces of Ontario, Alberta, Manitoba, funds and spent them with oversight only from local
Saskatchewan and British Columbia, Australia and its in- judges who sometimes benefit from the expenditures of
dividual States, and Antigua and Barbuda. In addition, such funds. The presumption is that travelers hiding
the Commonwealth has produced model provisions to large amounts of cash are transporting drug money.
serve as a template for jurisdictions that wish to intro- Often, the vehicle occupants are required to simply sign
duce such legislation. a waiver that they will leave the State and not return,
Advocates justify this trend towards civil forfeiture thus also not attempt to retrieve their funds. Some com-
by citing the nature of organized crime. Organized crime plain that this is law enforcement action requires more
heads use their resources to keep themselves distant oversight in order to minimize the impact on travelers
from the crime that they are controlling and to mask the who are not involved in drug money but who simply
criminal origin of their assets. Thus it is thought to be wish to avoid further involvement with law enforcement
too difficult to carry out successful criminal investiga- agents and sign the waiver anyway. Sen. John Whitmire,
tions leading to the prosecution and conviction of such D-Houston, chair of the Senate Criminal Justice Commit-
individuals, so that finances derived from crime are of- tee is investigating the Tenaha, Texas Police seizures
ten effectively out of the reach of the law and are avail- scandal.
able to be used to finance more crime. Criminal confisca- The number of federal statutes giving the govern-
tion regimes may be seen as inadequate and ineffective ment the right to confiscate citizens’ assets has nearly
in these cases. doubled since the 1990s, by one count. More than 400 fed-
Civil asset forfeiture has been harshly criticized by eral statutes allow for forfeiture for a wide range of rea-
liberals and civil libertarians for its greatly reduced stan- sons, including violations of the Northern Pacific Halibut
dards for conviction, reverse onus, and financial conflicts Act.
of interests arising when the law enforcement agencies
who decide whether or not to seize assets stand to keep
those assets for themselves.[1][2][3][4]
Asset forfeiture in the United
Kingdom
Asset forfeiture in the United In the UK asset forfeiture proceedings are initiated under
the Proceeds of Crime Act 2002. These fall into various
States types. Firstly there are confiscation proceedings, which
There are two types of forfeiture cases, criminal and civil. may follow a criminal conviction. Secondly, there are
Almost all forfeiture cases practiced today are civil. In cash forfeiture proceedings, which take place (in England
civil forfeiture cases, the US Government sues the item of and Wales) in the Magistrates Court with a right of appeal
property, not the person; the owner is effectively a third to the Crown Court, having been brought by either the
party claimant. Once the government establishes proba- police or Customs. Thirdly, there are civil recovery pro-
ble cause that the property is subject to forfeiture, the ceedings that at the moment are brought by the Assets
owner must prove on a "preponderance of the evidence" Recovery Agency "ARA". Under the Serious Crime Act
that it is not. The owner need not be judged guilty of any 2007 ARA’s functions will be transferred to the Serious
crime. In contrast, criminal forfeiture is usually carried Organized Crime Agency and the National Policing Im-
out in a sentence following a conviction and is a puni- provement Agency.[5] Neither cash proceedings nor pro-
tive act against the offender. Since the government can ceedings for a civil recovery order require a prior crimi-
choose the type of case, a civil case is almost always cho- nal conviction.
sen. The costs of such cases is high for the owner, usually In Scotland, confiscation proceedings are initiated by
totaling around $10,000 and can take up to three years. the procurator fiscal or Lord Advocate through the Sher-
The United States Marshals Service is responsible for iff Court or High Court of Justiciary. Cash forfeiture and
managing and disposing of properties seized and forfeit- civil recovery are brought by the Civil Recovery Unit of
ed by Department of Justice agencies. It currently man-
2
From Wikipedia, the free encyclopedia Asset forfeiture
the Scottish Government in the Sheriff court, with ap- • Operation Protect Our Children
peals to the Court of Session. • USA v. $124,700 August 18, 2006 case from the Eighth
Circuit Court on civil forfeiture of $124,700
Asset forfeiture in Ireland
Ireland was one of the first countries to introduce Asset
References
Forefeiture in the form of the Criminal Assets Bureau [1] http://reason.com/archives/2010/01/26/the-
which initiates civil forfeiture proceedings and the Direc- forfeiture-racket
tor of Public Prosecutions who initiates confiscation pro- [2] "A truck in the dock". The Economist. May 27, 2010.
ceedings. It was set up under the Criminal Assets Bureau http://www.economist.com/node/16219747.
Act,1996 by the Irish Government in response to the mur- [3] http://motherjones.com/kevin-drum/2010/04/
der of investigative journalist Veronica Guerin who was civil-asset-forfeiture
actively digging up dirt on the Irish Criminal Under- [4] http://www.fear.org/
world. [5] Serious Crime Act 2007, section 74
[6] "Report: Ruth Madoff Agrees To Forfeit $80M". CBS
Notable United States forfei- News. June 28, 2009. http://www.cbsnews.com/
stories/2009/06/28/business/main5119673.shtml.
tures [7] Justice.gov
[8] Justice.gov
After the Madoff investment scandal had surfaced,
[9] Newyork.fbi.gov
Bernard Madoff was ordered to forfeit $170 billion, al-
[10] Financialtaskforce.org
though it is believed that he did not have anywhere close
to that amount. His wife, Ruth, although not charged,
agreed to forfeit about $80 million in assets.[6] Further reading
In 2009 Lloyds Bank forfeited $350 million in connec- • Levy, Leonard Williams (1996). A License to Steal: The
tion with violations of the International Emergency Eco- Forfeiture of Property. Chapel Hill: University of North
nomic Powers Act (IEEPA) (falsified outgoing wire trans- Carolina Press. ISBN 0-8078-2242-6.
fers to persons on U.S. sanctions lists).[7]
In 2009 Credit Suisse, a Swiss corporation, forfeited
$536 million in connection with violations of IEEPA.[8] External links
In 2010 Barclays Bank forfeited $298 million in con- • The Looting of America, leaflet published by
nection with violations of the IEEPA and the Trading with International Society for Individual Liberty
the Enemy Act.[9] • Simon Prophet, victim of forfeiture in South Africa
In 2010 ABN Amro Bank forfeited $500 million in con- • Introduction to forfeiture laws, by Legal Information
nection with violations of the IEEPA and the Trading with Institute, Cornell University
the Enemy Act.[10] • List of offenses that trigger federal forfeiture More
• Judge David Demers - Search & Seizure Outline
See also • South Africa’s Constitutional Safeguards are in
Tatters
• Eminent domain
• Forfeiture Endangers American Rights - U.S. anti-
forfeiture activist organization
Retrieved from "http://en.wikipedia.org/w/index.php?title=Asset_forfeiture&oldid=463640072"
Categories:
• Property law
• Criminal law
• Asset forfeiture
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