Asset forfeiture laws are what give law enforcement the ability to seize property it believes has been used in connection with criminal activity. These laws play a significant, albeit debatable, role in combating crime and disrupting illicit activities, but at the same time raise incredibly important legal and ethical questions.

Understanding the ins and outs of asset forfeiture law, variations in procedures and protections across the United States, and the ethical considerations in asset forfeiture law are essential if you’ve been impacted by a forfeiture proceeding or have one coming soon on the horizon.

Jacek Lentz, leading asset forfeiture attorney from Asset Forfeiture Attorney based in Los Angeles, CA, prepared this guide to equip you with the knowledge you’ll need to successfully navigate through the asset forfeiture process. In it, we’ll explore the fundamentals of asset forfeiture law, some variations that exist in states across the country, and ethical concerns.

As you continue reading, please remember that this article does not constitute legal advice and should not be considered a replacement for the knowledge and experience of a competent attorney. A reliable attorney can thoroughly assess your case, navigate you through the legal proceedings of your asset forfeiture lawsuit, and successfully represent you in court.

Overviewing Asset Forfeiture Law

Asset forfeiture laws are primarily governed by federal statute, namely the Comprehensive Drug Abuse Prevention and Control Act (commonly known as the Controlled Substances Act), the Racketeer Influenced and Corrupt Organizations (RICO) Act, and the Money Laundering Control Act. These laws give law enforcement agencies the authority to seize assets that are allegedly involved in or derived from criminal activity, including drug trafficking, organized crime, and money laundering.

Asset forfeiture is generally categorized into criminal and civil forfeiture. Each type has its own legal standards and procedures.

Criminal Forfeiture

This type of forfeiture tends to occur as part of a criminal prosecution where property is seized and forfeited as a direct result of a criminal conviction. In these cases, the government must prove the property was connected to the criminal activity in question beyond a reasonable doubt.

Civil Forfeiture

In this type of forfeiture, the government may seize property without necessarily charging the property with a crime. How? It finds the property itself as guilty of being connected to the crime in question. Unlike criminal forfeiture cases, the standard is not as rigid. Instead of beyond a reasonable doubt, the prosecution generally only needs to show the connection by a preponderance of the evidence standard.

Variations And Protections

Despite asset forfeiture laws being primarily governed by federal statute, according to research done by the Institute for Justice, a nonprofit public interest law firm, state asset forfeiture laws can vary considerably. If you’re considering moving forward with an asset forfeiture settlement, this is information you’ll need to be keenly aware of, as it can have a dramatic effect on how your case unfolds.

Some states have enacted stricter forfeiture laws than others, including in them more robust procedural safeguards. Other states have faced criticism for facilitating abusive forfeiture practices. This isn’t difficult to imagine, given the questionable nature of asset forfeiture itself coupled with human nature. Some common variations between state asset forfeiture laws include:

Standard Of Proof 

To refer back to research conducted by the Institute of Justice once again, Montana, Nex Mexico, and North Carolina, among some other states, have laws on the books that call for higher standards when litigating civil asset forfeiture cases. Although they may not rise to the level of beyond a reasonable doubt, these laws still nevertheless make things much more fair for property owners.

Innocent Owner Protections 

The Institute for Justice also found in its study that there is a considerable difference between states in terms of how they implement innocent owner protection. Some states provide stronger safeguards for property owners who were unaware or did not consent to the unlawful use of their property. This is arguably best showcased in Wisconsin, where the law mandates that the government be able to prove a property owner knew about or consented to the use of their property in illegal activity before it can be forfeited.

Transparency 

New Mexico and Nebraska, for example, have taken proactive measures as reflected by laws recently passed that significantly enhance the transparency of the asset forfeiture process. These laws require a detailed report of activity associated with a forfeiture, including information on the seized property, forfeited assets, and how any proceeds generated were used.

Ethical Considerations 

Asset forfeiture law presents unique ethical challenges. It’s best to view seized assets as a public trust of sorts. Between this so often not being the case and the intrinsically questionable nature of asset forfeiture as it is, it comes as no surprise that many find asset forfeiture to be borderline unethical at best. As with virtually anything humans oversee, assets seized in asset forfeiture have often been subject to mismanagement, theft, and embezzlement.

As an example, in Michigan, a former chief, his wife, a detective sergeant, and four detectives were charged with manipulating an investigation to obtain assets about a decade ago, including forfeiture funds, for personal gain. They allegedly embezzled cash and solicited prostitutes, all while falsifying reports to do so.

In Mississippi, a sheriff pleaded guilty to witness intimidation and obstruction of justice. This prompted an investigation that eventually stumbled upon stolen seized assets. The sheriff's office had misused funds to purchase vehicles that were never officially used by the department he was over.

Asset forfeiture laws play a significant role in law enforcement’s efforts to combat crime and prevent unlawful activity from continuing. Understanding them, as well as variations across state lines is crucial to navigate this complex area of the law effectively while ensuring a favorable outcome. If you are in a more nuanced situation and have questions or need to find a reliable asset forfeiture defense lawyer, email or call Jacek Lentz of Asset Forfeiture Attorney at 213-250-9200 today.