Deciding Which Charges to Pursue

Posted on: 21 August 2015

Asset forfeiture  (A.F.)  is a tool to help law enforcement curb drug and terrorism activity in the U.S. It is not without its controversial aspects however. Seven of these will be discussed below.

1. A.F. is handled through a civil proceeding.

Assets are seized through a civil procedure even when no one has been charged with a crime and may be taken even if it is not the owner who is at fault. If someone is suspected of committing a crime and in possession of the item or inside a property like a house or a car, it can be seized. The action will not be against a person but the asset itself.

2. To fight an A.F. you will have to pay for your own lawyer.

 Since asset forfeiture is a civil action, there is no provision for a public defender. People who have had property or cash taken have to foot the legal bills to dispute a seizure. Sometimes the costs are so great, people can't find the resources to fight it.

 Ironically, some supporters of A.F. say that the statistics that show that the majority of forfeitures are not challenged is evidence that such seizures were just, even though lower income persons have been targeted  precisely because they would be less able to do anything about it.

3. Civil court does not require the same burden of proof of guilt that criminal court does.

The plaintiff in a civil trial, which in this case is the government, only has to prove their case by a "preponderance of the evidence," whereas in a criminal case the standard that a prosecutor must meet would be "guilty beyond a reasonable doubt."

4. Critics say A.F. amounts to extortion.

Defendants may be told that if they pay a substantial fee or fine, they can get their assets back. This could be considered legalized extortion, especially if you were innocent of any wrongdoing. Many have lost their assets outright because they couldn't afford the fine to  redeem their property.

5. A person has to fight hard to prove innocence under an uneven set of standards.

A.F. has effectively made "guilty until proved innocent" the new guiding principle and is making justice much harder to attain for persons. The plaintiffs in civil asset cases are held to an extremely high standard of proof while the government has been able to  use hearsay testimony and other weak evidence.

6. Police Departments may be provided with incentives to pursue A.F. unfairly.

In many jurisdictions, the authorities can use proceeds from A.F. cases to buy equipment, hire more personnel, and fund other desired items. There has been some evidence that law enforcement agencies are policing for profit by targeting  desirous properties and assets of citizens for unfair seizure.

7. When improperly used, it is in conflict with two amendments to the constitution.

It is conceivably in conflict with the fourth amendment of the constitution that prohibits illegal search and seizure of citizens' property and the eighth amendment with prohibits excessive fines.

Some states are tightening restrictions on asset forfeiture to curb abuses of the system by making it mandatory that a person is convicted of a crime before their assets can be taken. Some police departments were applying federal standards through the Justice's Equitable Sharing Program to circumvent state laws, but in March of 2015 the federal requirements were tightened.

 Federal prosecutors now must provide convincing evidence of probable cause that a crime was committed.

Seek legal advice if you are involved in an asset forfeiture case

To protect your rights in an asset forfeiture case and to give you legal advice on your state's laws and/or the federal statutes, you will need the services of criminal traffic attorney experienced in the criminal and civil aspects of the situation to guide you.