Forfeiture of property is a law enforcement tool that intends to solve several issues. Firstly, it is a logical solution to expropriate the crime proceeds in favor of the victims. Secondly, asset recovery is believed to be an additional crime deterrent. According to Cassella (2018), another purpose of this policy is “to lessen the economic power of criminal enterprises” (p. 428). This aim is the central motivator for property forfeiture in the ‘War on Drugs,’ as it intends to confiscate vehicles and housing used for drug trafficking, as well as money gained by it. Police departments also use this property as the financial resource for police training or law enforcement activities.
However, this purpose is believed, as Miceli and Johnson (2015) claim, the reason for overuse. Another question to asset forfeiture laws concerns the cases when the criminals use the assets owned by innocent third-party individuals. Although they can provide evidence of their innocence, the presumption of guilt applied to these people is unfair.
Civil and Criminal Asset Forfeiture Laws
The legal justification for asset recovery, either criminal or civil, implies that any property used in a crime or derived from it (crime proceeds) should be expropriated as the means of punishment and deterrent. There are two ways in which law enforcement can perform property seizure, namely criminal asset forfeiture or civil asset forfeiture. Miceli and Johnson (2015) define criminal forfeiture as the confiscation of property owned exclusively by the criminal only after the conviction. Civil asset forfeiture causes more controversy, as no sentence is necessary for it, and the recovered property can have an innocent third-party owner.
As criminal forfeiture is believed to be a limited tool and requires a long-term trial process, it is often combined with civil forfeiture. Cassella (2018) states that several “criminal prosecutions involve a parallel administrative forfeiture of the seized property” (p. 435). This measure allows the recovery of the property before the conviction and includes assets owned by other individuals and rented by the criminal. However, there are some pitfalls of this policy, as the owners often are not aware of the criminal activity for which their property is used.
Asset Forfeiture and War on Drugs
War on drugs is a large-scale initiative that consists of a set of policies and interventions aimed at combating the illegal drug trade in the U.S. As narco-traffickers follow economic purposes, the instruments of dealing with them should impose severe financial outcomes. That is why property forfeiture is defined by Miceli and Johnson (2015) as “a weapon in the war on drugs” (p. 119). In addition to punishment, the retrieved capital is used in improving the lives of communities affected by the drug trade and reinforcing police departments. Only in 2006, almost 30% of U.S. local police departments received property, goods, or money from drug asset forfeitures (Miceli&Johnson, 2015). In such cases, civil asset forfeiture is often applied, and it has proved to be effective.
This type of asset recovery was not used often before the announcement of the drug war. Today, civil asset recovery is among the key instruments for dealing with drug trafficking. Gius (2018) studies the deterrent effect of civil forfeiture on the illegal drug trade and finds a negative correlation between the rates of drug-related crimes and asset forfeiture. However, the relationship is less than 0,05%, which demonstrates the minimal effect of such policies (Gius, 2018). Although it can be assumed that drug-related crime rates would have been increasing without civil asset forfeiture, it is evident that this policy cannot be the only tool in the drug war.
Forfeiture of Property Owned by the Third Parties
Seizing the criminal’s property, either crime proceeds or crime tools is a fair and logical legislative practice. However, the controversy arises when the assets were rented or belonged to the criminal’s family members or other people. For example, when the passenger of the car has drugs or illegal weapons but does not claim them, the owner is charged and loses his property. The innocent owners of the forfeited property have ways of getting it back.
According to the criminal forfeiture statutes, the recovered property third parties excluded from the proceeding are noticed about the forfeiture and are allowed to contest the assets in a post-trial proceeding (Cassella, 2018). Concerning civil forfeiture, the owners have to provide evidence of their unawareness of the use of their property for the crime. However, these proceedings are unfair because they are presumed guilty instead of being presumed innocent.
Another severe flaw of this policy is that many mistakes occur in the proceedings concerning owner innocence. Miceli and Johnson (2015) described the example of the court case when the multifamily house was forfeited even when the owners provided proof of their efforts to stop their family members from dealing drugs. It is evident that this property seizure intends to have a deterrent effect, but the mentioned cases also raise ethical concerns. If the parents do not report their child who deals drugs to the police (their motivation is understandable), should they lose the house where all the family lives? Although they are guilty, such punishment is hardly commensurable.
Conclusion
Asset forfeiture by law enforcement is a legislative measure of recovery of any property that was gained due to illegal actions or was used as the instrument of a crime. It has long been used as one of the primary weapons against drug trade activity. Despite its deterring effect, asset forfeiture policy is controversial when it concerns innocent third-party owners. Although they can return their property, they are viewed in this process from the perspective of presumption of guilt, which is unfair.
References
Cassella, S. D. (2018). Asset forfeiture law in the United States. In C. King, C. Walker, & J. Gurulé (Eds.), The Palgrave handbook of criminal and terrorism financing law (pp. 427-466). Cham, Switzerland: Palgrave Macmillan.
Gius, M. (2018). The effects of civil and criminal forfeitures on drug-related arrests. Justice Policy Journal, 15(1), 1-15.
Miceli, T. J., & Johnson, D. (2015). Asset forfeiture as a law enforcement tool. Contemporary Economic Policy, 34(1), 119-126. Web.