Asset forfeiture allows law enforcement to seize assets connected to criminal activity. There are two main types of asset forfeiture – criminal forfeiture and civil forfeiture. While they have some similarities, there are important differences between the two. This article will examine criminal versus civil forfeiture and highlight the key distinctions.
What is Criminal Forfeiture?
Criminal forfeiture is the process by which assets can be seized and forfeited to the government as part of sentencing for a criminal conviction. Criminal forfeiture only happens after someone has been convicted of a crime in court.
The assets that can be criminally forfeited are either:
- Proceeds from the crime, such as money stolen in a bank robbery
- Property used to facilitate the crime, like a car used as a getaway vehicle
Criminal forfeiture is viewed as part of the punishment and is included in sentencing. For example, a judge may order a convicted drug dealer to forfeit the cash he made from selling drugs along with his sentence of jail time.
Criminal forfeiture cannot occur without a criminal conviction. Law enforcement must prove beyond a reasonable doubt that the assets in question are connected to criminal activity. The forfeiture is part of the criminal trial process.
What is Civil Forfeiture?
Civil forfeiture, on the other hand, is a process that allows law enforcement to seize assets suspected of being involved in a crime without having to convict anyone of criminal activity.
With civil forfeiture, the case is filed against the property itself, not the property owner. The government essentially sues the property for its connection to criminal activity. Since it is a civil action, the government only has to show there is a preponderance of evidence, rather than beyond a reasonable doubt.
Here are some key facts about civil forfeiture cases:
- The case is against the property, so no criminal conviction is required
- The standard of proof is lower than in a criminal case
- It allows law enforcement to seize assets they suspect are tied to crime
- The property owner must prove the assets are not connected to criminal activity
This means the government can seize property through civil forfeiture even if there is not enough evidence for a criminal conviction. The property owner then must fight the forfeiture to try to get their property back.
Key Differences Between the Two Types
While criminal forfeiture and civil forfeiture have some similarities in that they both allow for the seizure of property, there are critical differences between the two processes:
Criminal Conviction
- Criminal forfeiture requires a conviction. Civil forfeiture does not.
Burden of Proof
- For criminal forfeiture, the government must prove beyond a reasonable doubt that the assets are connected to criminal activity. For civil forfeiture, the government only needs a preponderance of the evidence.
Rights to Counsel
- Those facing criminal charges have a right to counsel. But since civil forfeiture is against the property itself, owners do not have a right to an attorney.
Where Forfeiture Proceedings Occur
- Criminal forfeiture is part of the criminal trial process. Civil forfeiture proceedings are separate civil court cases.
Presumption of Innocence
- Criminal defendants are innocent until proven guilty. However, this is not the case with civil forfeiture. Here, the burden is on property owners to prove assets are not connected to criminal activity.
Problems with Civil Forfeiture
Civil forfeiture has come under scrutiny and criticism in recent years for some of its practices and implications:
- Financial incentive – Law enforcement agencies often get to keep the proceeds from civil forfeitures, which critics argue creates a profit motive and conflicts of interest.
- Lack of conviction – Being able to seize assets without a criminal conviction circumvents constitutional protections. There is no presumption of innocence.
- Burden shifting – Requiring owners to prove assets are not connected to crimes can be extremely difficult. The burden should be on the government.
- Taking without compensation – Permanent confiscation of property without restitution or compensation raises due process issues.
- Abuse potential – The relatively low burden of proof and financial incentives invite potential abuse and excessive seizures by law enforcement.
While civil forfeiture can serve legitimate law enforcement purposes, reform efforts are aimed at increasing oversight, raising the standard of proof, and preventing abuse of this powerful tool.
In summary, criminal forfeiture occurs after a criminal conviction while civil forfeiture does not require any charges or convictions against an owner. The government has to meet a higher burden of proof for criminal forfeiture but owners have more constitutional protections. Civil forfeiture’s lack of convictions and focus on property has led to concerns about abuse and fairness.
Seek Legal Assistance with Forfeiture Matters
The forfeiture of personal assets and property can greatly affect your livelihood and financial standing. If you face criminal charges or believe your property was wrongfully seized, be sure to consult with our legal professionals to protect your rights. Our experienced asset forfeiture lawyers can advise you and represent your interests in negotiating with law enforcement or fighting forfeiture in court.
Visit our office at 422 Jacksonville Dr. Suite B, Jacksonville Beach, FL 32250.
Or call us today for a free consultation on (904) 587 4446.
