Asset Forfeiture

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Lore & Background

In the United States, there are two types of forfeiture cases: criminal and civil. Approximately half of all forfeiture cases practiced today are civil, although many of those are filed in parallel to a related criminal case. In civil forfeiture cases, the US government sues the item of property, not the person; the owner is effectively a third-party claimant. The burden is on the government to establish that the property is subject to forfeiture by a preponderance of the evidence. If it is successful, the owner may yet prevail by establishing an 'innocent owner' defense. In contrast, criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender. The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies, currently managing around $2.4 billion worth of property.

In Their Own Story

Federal civil forfeiture cases usually start with a seizure of property followed by the mailing of a notice of seizure from the seizing agency (generally the DEA or FBI) to the owner. The owner then has 35 days to file a claim with the seizing agency. Once the claim is filed with the agency, the U.S. Attorney has 90 days to review the claim and to file a civil complaint in U.S. District Court. The owner then has 35 days to file a judicial claim in court asserting his ownership interest. Within 21 days of filing the judicial claim, the owner must also file an answer denying the allegations in the complaint. Once done, the forfeiture case is fully litigated in court. In civil cases, the owner need not be judged guilty of any crime; it is possible for the government to prevail by proving that someone other than the owner used the property to commit a crime.

Reader's Guide

Asset forfeiture has been harshly criticized by civil liberties advocates for its greatly reduced standards for conviction, reverse onus, financial conflicts of interests arising when the law enforcement agencies who decide whether or not to seize assets stand to keep those assets for themselves, and violation of separation of powers and due process. In 2015, a number of criminal justice reformers, including Koch family foundations and the ACLU, announced plans to reduce asset forfeiture in the United States due to the disproportionate penalty it places on low-income alleged wrongdoers. The forfeiture of private property often results in the deprivation of the majority of a person's wealth. Congress has incrementally expanded the government's authority to disrupt and dismantle criminal enterprises and their money-laundering activities since the early 1970s by enacting various anti-money-laundering and forfeiture laws such as the RICO Act of 1970 and the USA Patriot Act of 2001.

Did You Know?

• In civil forfeiture cases, the US government sues the item of property, not the person; the owner is effectively a third-party claimant.
• The United States Marshals Service currently manages around $2.4 billion worth of seized and forfeited property.
• Approximately half of all forfeiture cases practiced today are civil, though many are filed in parallel to a related criminal case.
• The RICO Act of 1970 and the USA Patriot Act of 2001 are among the laws that expanded the government's forfeiture authority.
• In 2015, the Koch family foundations and the ACLU jointly announced plans to reduce asset forfeiture due to its disproportionate penalty on low-income alleged wrongdoers.