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Asset forfeiture is a term used to describe the confiscation of assets, by the State, which are either (a) the proceeds of crime or (b) the instrumentalities of crime, and more recently, terrorism. Instrumentalities of crime are property that was used to facilitate crime, for example cars used to transport illegal narcotics. The terminology used in different jurisdictions varies. Some jurisdictions use the term "confiscation" instead of forfeiture. In recent years there has been a growing trend for countries to introduce civil forfeiture. Such proceedings may be brought in the USA, Australia, the UK, Ireland, Italy, South Africa, various Canadian Provinces and Antigua.

Proponents of asset forfeiture suggest that it is a necessary tool to prevent drug trafficking or other crimes. "Asset forfeiture is a law enforcement success story" [1]. Former United States President George H. W. Bush said, "[Asset forfeiture laws allow [the government] to take the ill-gotten gains of drug kingpins and use them to put more cops on the streets."

The trend towards civil forfeiture has in part been prompted by the nature of organized crime. Organized crime heads use their resources to keep themselves distant from the crimes that they control and to mask the criminal origins of their assets. For this reason it has become extremely difficult to carry out successful criminal investigations leading to the prosecution and conviction of such individuals.

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Asset forfeiture in the United States

There are two types of forfeiture cases, criminal and civil. Almost all forfeiture cases today are civil. In civil forfeiture cases, the US Government sues the item of property, not the person; the owner is effectively a third party claimant. Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove on a "preponderance of the evidence" that it is not. The owner need not be judged guilty of any crime. In contrast, criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender. Since the government can choose the type of case, a civil case is almost always chosen. The costs of such cases is high for the owner, usually totaling around $10,000 and can take up to three years.

The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. It currently manages around $1 billion worth of seized property. The United States Treasury Department is responsible for managing and disposing of properties seized by Treasury agencies. The goal of both programs is to maximize the net return from seized property by selling at auctions and to the private sector ,and then using the property and proceeds for law enforcement purposes.

One controversial form of asset forfeiture is roadside forfeiture during a vehicle stop, usually enforced by highway police. Sen. John Whitmire, D-Houston, chair of the Senate Criminal Justice Committee is investigating the Tenaha, Texas Police seizures scandal.

Asset forfeiture in the United Kingdom

In the United Kingdom asset forfeiture proceedings are initiated under the Proceeds of Crime Act 2002. There are three types:

Neither cash proceedings nor proceedings for a civil recovery order require a prior criminal conviction.

In Scotland, confiscation proceedings are initiated by the procurator fiscal or Lord Advocate through the Sheriff Court or High Court of Justiciary. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of the Scottish Government in the Sheriff court, with appeals to the Court of Session.

Asset forfeiture in Ireland

Ireland was one of the first countries to introduce asset forfeiture. The Criminal Assets Bureau initiates civil forfeiture proceedings and the Director of Public Prosecutions initiates confiscation proceedings. The Bureau was set up under the Criminal Assets Bureau Act 1996, partly in response to the murder of the investigative journalist Veronica Guerin, who had exposed many of the activities of the Irish criminal underworld.

Notable forfeitures

After the Madoff investment scandal surfaced, Bernard Madoff was ordered to forfeit $170 billion. His wife Ruth, although not charged, agreed to forfeit about $80 million in assets.[2]

See also

References

Further reading

  • Levy, Leonard Williams (1996). A License to Steal: The Forfeiture of Property. Chapel Hill: University of North Carolina Press. ISBN 0-8078-2242-6.  

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