| Criminology andpenology |
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Theory |
Asset forfeiture orasset seizure is a form ofconfiscation ofassets by theauthorities. In the United States, it is a type ofcriminal-justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This applies, but is not limited, to terrorist activities, drug-related crimes, and other criminal and even civil offenses. Some jurisdictions specifically use the term "confiscation" instead offorfeiture. The alleged purpose of asset forfeiture is to disrupt criminal activity by confiscating assets that potentially could have been beneficial to the individual or organization. Asset forfeiture was found to generally increase with the percentage of the assets retained depending on electoral incentives.[1]
Thestandards of proof generally differ incriminal procedure andcivil procedure. In civil cases the preponderance of the evidence which is described as anything over fifty percent can be sufficient.[2]
To facilitate international cooperation in confiscation, theUnited Nations Convention against Corruption encourages state parties to consider taking the necessary measures to allow confiscation of the proceeds of corruption without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.[3][4]
Civil asset forfeiture has been harshly criticized bycivil liberties advocates for its greatly reduced standards for conviction,reverse onus, financialconflicts of interests arising when the law enforcement agencies who decide whether or not to seize assets stand to keep those assets for themselves,[5][6][7][8] and violation ofseparation of powers anddue process.[9]
Part XII.2 of theCriminal Code, a federal statute, provides a national forfeiture régime for property arising from the commission of a designated offence (i.e. mostindictable offences), subsequent to conviction. Provision is also made for the use of restraint and management orders to govern such property during the course of a criminal proceeding.[10]
All provinces and territories exceptNewfoundland and Labrador,Prince Edward Island andYukon Territory, have also enacted statutes to provide for similar civil forfeiture régimes.[citation needed][11][12] These generally provide, on abalance of probabilities basis, for the seizure of property:
The Supreme Court of Canada has upheld civil forfeiture laws as a valid exercise of the provincial government power over property and civil rights. The extent to which theCharter of Rights and Freedoms applies to civil forfeiture statutes is still under dispute. To the extent that such laws are applied for a "punitive" purpose, there is case law to suggest that theCharter applies.[14] In cases where evidence has been obtained illegally, courts in Alberta[15] and British Columbia[16] have excluded such evidence.
In April 2014, theEuropean Parliament and theCouncil of the European Union enactedDirective 2014/42/EU on the freezing and confiscation of proceeds of crime in theEuropean Union.[17] The directive allows the seizure and confiscation of property without a criminal conviction only under very specific circumstances.[18][19][20][21][22] Article 4 states:
In the UK, asset forfeiture proceedings are initiated under theProceeds of Crime Act 2002. These fall into various types. Firstly there are confiscation proceedings. A confiscation order is a court order made in theCrown Court requiring a convicted defendant to pay a specified amount of money to the state by a specified date. Secondly, there are cash forfeiture proceedings, which take place (in England and Wales) in amagistrates' court with a right of appeal to theCrown Court, having been brought by either the police or customs. Thirdly, there arecivil recovery proceedings that are brought by theNational Crime Agency (NCA). Neither cash forfeiture proceedings nor proceedings for a civil recovery order require a prior criminal conviction.
In Scotland, confiscation proceedings are initiated by theprocurator fiscal orLord Advocate through asheriff court orHigh Court of Justiciary. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of theScottish Government in a sheriff court, with appeals to theCourt of Session.
There are two types of forfeiture (confiscation) cases, criminal and civil. Approximately half of all forfeiture cases practiced today[when?] are civil, although many of those are filed in parallel to a related criminal case.[citation needed] Incivil forfeiture cases, the US governmentsues the item of property, not the person; the owner is effectively a third-partyclaimant. The burden is on the government to establish that the property is subject to forfeiture by apreponderance of the evidence. If it is successful, the owner may yet prevail by establishing an "innocent owner" defense.
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 theDEA orFBI) to the owner. The owner then has 35 days to file a claim with the seizing agency. The owner must file this claim to later protect his property in court. Once the claim is filed with the agency, theU.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.[23]
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 (this claim seems outdated and as such would be contradicted by the "innocent owner" defense).[citation needed] In contrast,criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender.
TheUnited States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. It currently[when?] manages around $2.4 billion worth of 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 atauctions and to the private sector and then using the property and proceeds to repay victims of crime and, if any funds remain after compensating victims, for law enforcement purposes.[citation needed]
Congress has incrementally expanded the government's authority to disrupt and dismantle criminal enterprises and their money-laundering activities since the early 1970s. They have done this by enacting various anti-money-laundering and forfeiture laws such as theRICO Act of 1970 and theUSA Patriot Act of 2001. The concepts of asset forfeiture goes back thousands of years and has been recorded throughout history on many occasions.[24]
In 2015 a number of criminal justice reformers, includingKoch family foundations and theACLU, 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.[25]
It is difficult for authorities to track, confiscate, and disrupt terrorist-organization finances because they may come from a variety of sources—such as other countries, supporting sympathizers, crime, or legal businesses. Terrorist groups can profit from many crimes—such as black mail, robbery, extortion, fraud, drug trafficking, etc. If discovered and proven terrorist assets, authorities can confiscate property to disrupt terrorist activities. Understanding what constitutes 'terrorist property' is important, because these offenses are widely defined by the 2000 Act as:
- Property or money that is likely to be used for the purposes of terrorism (including any resources of an organization)
- Proceeds of the commission of acts of terrorism
- Proceeds of acts actually carried out for the purposes of terrorism.[26]
The 2000 Act brought a new system for the forfeiture of terrorist cash. This was modeled on the UK's drug-trafficking cash-seizure process and allowed for the seizure of cash for 48 hours by a constable, customs officer or immigration officer if reasonable grounds were found for suspecting that it was intended to be used for terrorism or was terrorist property. An officer who seized the assets or cash could apply to a magistrates' court[clarification needed] for an order authorizing its continued detention to give time for further investigation into where it came from. If the magistrates' court is generally satisfied on the balance of probabilities that the cash was intended to be used for the purposes of terrorism or was terrorist property, then it could make a forfeiture order.[26]
The assets that are forfeited for criminal and civil offenses are used "to put more cops on the street", according to former United States President George H. W. Bush.[27][failed verification] The assets are dispersed among the law enforcement community for things such as paying the attorneys involved in the forfeiture case, police vehicles, meth-lab clean up, and other equipment and furniture.[24]
