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OVERSIGHT OF FEDERAL ASSET FORFEITURE: ITS ROLE IN FIGHTING CRIME WEDNESDAY, JULY 21, U.S. Senate, Subcommittee on Criminal.
Table of contents

Louisiana, U.

Yet, in its use of civil forfeiture, the law enforcement community does just that. See supra text accompanying notes 43— This punitive intent is clear from law enforcement statements. One Assortment of 89 Firearms, U. Ward, U. See Tex. Code Crim.

B. Sample Condition Language

On the second question, the Court has weighed a number of nonexhaustive criteria. While jurisprudence in this area has not always been clear, the Court has traditionally considered the factors established in Kennedy v. See Terrance G.

The Challenge

To the extent that other frameworks are considered, they often rely on similar considerations to those expressed in Mendoza-Martinez. Mendoza-Martinez , U. Smith v. Doe, U. However, if a court were to take a less restrictive approach, it could find that Chapter 59 imposes burdens that are functionally disabling. The statute implicitly recognizes this by allowing owners to retain seized property in exchange for an equal value bond, pending a judicial forfeiture determination.

But this provision offers little solace to owners as it merely substitutes a financial burden for the property-deprivation burden and exempts broad property categories, such as monetary forfeitures. It also applies only pretrial, leaving owners no less burdened once the forfeiture is finalized. The disability caused by civil forfeiture is particularly acute where the statute authorizes forfeiture of assets unconnected to the criminal activity. See Reed, supra note , at Finally, Chapter 59 places an affirmative disability on owners by requiring them to prove their own innocence to challenge a seizure, which likely necessitates hiring outside counsel.

The second factor — whether the sanction has historically been considered punishment — militates in favor of finding Chapter 59 punitive. The Court has stated that in rem forfeitures were not historically regarded as punishment. Austin v. Early cases also suggest that civil forfeitures were conducted akin to criminal matters, such as by requiring the government to prove its case beyond a reasonable doubt. Brig Burdett, 34 U. The prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt.


  • Millions In Forfeitures Fund Necessities And Extras!
  • Participants And Roles;
  • Sixth Grade Spy Club Collection.
  • Agencies Seize, And Spend, Without Oversight.
  • Esurientes Implevit (from Magnificat)?

Finally, Chapter 59 authorizes forfeiture for virtually all felonies and many misdemeanors. See supra p. Third, Chapter 59 is applicable on a finding of scienter. In demonstrating that the property was used in the commission of a crime the prosecutor must prove that the crime occurred, including the criminal intent element.

The actor with criminal intent need not be the property owner. Pearson Yacht Leasing Co. In operation, Chapter 59 forfeitures may deter and retribute crime. On factor five, Chapter 59 applies to already-criminalized behavior. Schecter, supra note , at Criminal activity is a predicate to in rem forfeiture. See supra note discussing United States v. Sixth, the statute does have a rationally connected nonpenal purpose, making this one of few factors favoring a nonpunitive finding.

The latter aim is diluted, however, by the inappropriateness of forcing certain property owners to bear the expense of funding law enforcement through civil forfeiture rather than through legislative taxes or funding increases. Ursery , U. While the Court characterizes these aims as nonpunitive, they could just as easily be cast as serving criminal deterrence. But cf. Finally, the Court analyzes whether the statute is excessive in relation to its nonpunitive purpose.

Kennedy v. Mendoza-Martinez, U. It was specifically developed as a tool in the war on crime rather than to further restitutive aims. A system that deprives individuals of property for criminal activity without criminal procedural protections is an unduly severe mechanism by which to protect the community. Such protection is not advanced by provisions enabling forfeiture of otherwise noncriminalized property, like homes and cars, that do not create a risk to the community. Wielding the force of criminal law is a disproportionate response to budgetary deficits.

The defense permits forfeitures where the owner was not negligent or criminally culpable, which does nothing to deter property misuse or protect the community. This may have been the case for Lisa Leonard, who testified that the money seized from her son was from her recent home sale, but was unable to establish an innocent owner defense to forfeiture. If the Court were to determine that modern forfeiture practices are punitive, current forfeitures would be unconstitutional to the extent that the proceedings fail to provide the requisite constitutional protections.

See supra text accompanying notes 98— The effect of applying additional procedural protections to civil forfeitures could be significant. Faced with additional procedural obstacles, prosecutors may hesitate to pursue civil over criminal forfeitures, helping to limit civil forfeitures to cases that are truly nonpunitive. See supra text accompanying notes 93— Though beyond the scope of this Note, it is worth questioning whether it is logical to reserve some constitutional protections solely for criminal prosecutions.

While owners subject to punitive civil forfeitures are not facing criminal charges, the forfeiture may subject them to a criminal-like investigation and a harsh penalty in the confiscation of valuable property. In such circumstances, the full panoply of criminal law procedures may seem an appropriate safeguard. While the aforementioned issues are alarming, they are not lost on legislatures. Unfortunately, equitable sharing undermines these efforts.

It was established to help fight the war on drugs under the Comprehensive Crime Control Act of See Shawn Kantor et al. Research, Working Paper No.

- AG Guidelines On Seized And Forfeited Property | JM | Department of Justice

It is therefore unsurprising that equitable sharing facilitates punitive civil forfeitures. To the extent that any civil forfeiture pursued via equitable sharing is independently punitive, section II. Equitable sharing requirements also include minimum property value thresholds for adoption. Guide to Equitable Sharing , supra note , at 7. Moreover, the federal government uses equitable sharing to bolster its own criminal law enforcement agenda.

The program creates a channel for the federal government to impose its criminal law on localities while expending fewer resources on prosecutions. For example, after an Anaheim, California police officer bought marijuana from a medical dispensary, state prosecutors refused to take forfeiture action against the property.

Under separate California statutes, medical marijuana is legal and civil forfeiture of real property for a controlled substance offense is barred. Despite this, local Anaheim authorities teamed up with the Drug Enforcement Administration to pursue civil forfeiture of the office building from its lessor, since marijuana remains federally criminalized and federal law allows forfeiture of real property.

Civil forfeiture in the United States

Sibilla, supra note Eventually the federal government dropped the suit. Printz v. Term Limits, Inc.

Thornton, U. See also New York v.

U.S. Justice Department taps prosecutor to oversee asset forfeiture program

White, 74 U. Printz , U. Michael J. While the federal government has the power to regulate citizens via legislation or encourage state cooperation with grant funding, it is unable to compel states to adopt or enforce federal provisions. See New York , U. Ashcroft, U. See Printz , U.

Testing Opposing Views of Forfeiture

As the Court explained:. If state residents would prefer their government to devote its attention and resources to problems other than those [federally prioritized,]. New York , U. However, where the federal government coerces state participation, state and federal accountability wane. Equitable sharing undermines these federalism principles. Existing doctrine has confined findings of coercion to situations where the federal government threatens to revoke significant funding grants to engender compliance. Sebelius, U. Dole, U. Many local agencies are functionally unable to decline the hundreds of millions of dollars that come with equitable sharing when faced with significant budget cuts.

Multiple studies show that as state laws make forfeiture tougher, equitable sharing participation increases; stricter state forfeiture laws reduce profits for law enforcement agencies, forcing them to seek alternative funding to supplant the deficit. Holcomb et al.