Asset forfeiture is a practice the United States long has used. The federal government started using the tactic more frequently in the 1970s as law enforcement agencies began cracking down on drug use. The idea behind most forfeitures is to punish those who have committed wrongdoings.
The Civil Asset Forfeiture Reform Act of 2000 changed some of the federal forfeiture laws, despite protests from the law enforcement community and the Department of Justice. One of the most significant changes made to forfeiture law is the waiver of a cost bond in all cases except administrative forfeiture.
The legislation also changed the existing law to allow for a court appointed attorney to represent a claimant, which previously was not done. It shifted the burden of proof from the claimant to the government and limited the availability of warrantless seizures.
Today forfeiture is consolidated into a few general provisions. There are two types of forfeiture cases in the United States, criminal and civil. Nearly half of the forfeiture cases in the country are civil cases, but they often are tied to pending criminal cases.
Courts can have either in rem or in personam jurisdiction in forfeiture proceedings. The U.S. Government essentially sues the item of property in in rem jurisdiction, not the person, and the owner is effectively a third-party claimant. This often is used in civil forfeiture cases.
In civil cases, the owner does not have to be guilty of any crime for his or her property to be taken. This means it is possible for the government to seize the property by proving someone other than the owner used the property to commit a crime.
The theory behind in rem proceedings is the legal idea that the property itself is considered guilty. The court, which then has jurisdiction over the property, will decide who has superior title between the government and the claimant.
In some instances after a person is convicted of a crime, the federal government could confiscate some of his or her property. Typically, the items that are taken from the person are things that could have been related to the crime. For example, if a person used a vehicle to transport illegal narcotics, it could be seized.
Generally, criminal forfeitures are in personam. The criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender. This means it essentially is another penalty for a crime.
A seizure warrant can be issued before the property actually is taken, but there is generally no pre-seizure notice provided to the owner. The U.S. Supreme Court has held that pre-seizure notice is not required in order to meet due process requirements. Property can be seized without a warrant for several different reasons, including:
• A complaint for forfeiture was filed and an arrest warrant in rem was issued
• The property was lawfully seized by state or local law enforcement and was turned over to a federal agency
• Probable cause exists to believe the property is subject to forfeiture and the seizure is pursuant to a lawful arrest or search or an exception to the Fourth Amendment warrant requirement applies
The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. The service currently manages billions of dollars worth of property.
Gerry Goldstein is a well respected and experienced criminal defense attorney with more than 40 years of experience. Goldstein is based in San Antonio, Texas, where his firm Goldstein, Goldstein & Hilley represent clients facing a variety of criminal charges, including drug crimes, federal crimes, sexual offenses, cyber crimes and homicides.
