Civil forfeiture, it is true, imputes a lower burden of proof on behalf of the government. While this may appear alarming at first blush, this lower standard is typical to all cases involving civil wrongs taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. Civil forfeiture, although quasi-criminal in nature, has no bearing on an individual's liberty interest. Rather, it involves property interests only, and the law of property, it is well understood, is embraced by civil law.
In 1995, for instance, O.J. Simpson was acquitted of murder after a lengthy and internationally publicized criminal trial. Meaning the burden of proof in his criminal case ("beyond a reasonable doubt") was not met. In 1997, however, a civil court, operating with a lower burden of proof ("by a preponderance of the evidence"), awarded a judgment against Simpson for wrongful death in the amount of $33.5 million. While Simpson did not go to prison (which would have been a liberty interest), a money judgment was awarded against him (a property interest) based upon the criminal injury caused - injury which was properly and adequately proven in a court of law by a preponderance of the evidence standard.
To this end, civil forfeiture is available as a means of recovering property for the benefit of victims for imposing a sanction on the wrongdoer. Even more so when the crime is a relatively minor offense and the interests of justice do not require bringing to bear the full force of the federal criminal justice apparatus against the accused (e.g., teenagers who use their home computers to produce counterfeit $10 bills are more likely to have their computer confiscated in a civil forfeiture case then to be prosecuted and sent to prison for the offense).
Civil forfeiture is also necessary in instances where the evidence clearly shows that particular property was involved in a crime, but the Government is unable to prove who the actual wrongdoer was. For example, and as is often the case, when law enforcement locates a stash of currency bearing all of the indicia of money derived from a drug deal (drug residue on large quantities of small denomination bills, bundled in rubber bands and wrapped in plastic or brown paper) but has no idea who the drug dealer was who assembled the currency and/or those in possession of the currency disclaim ownership or "play dumb," civil forfeiture is a vital tool to properly dispose of the property.
Additionally, civil forfeiture becomes useful when the Government seeks to forfeit the property of fugitives or of defendants who have died - a mechanism that is virtually untenable in the criminal forfeiture context. Moreover, because third parties are excluded from participating in the criminal case (until the ancillary proceeding), property belonging to third parties is not subject to criminal forfeiture. On the other hand, anyone with an interest in the property can contest a civil forfeiture as soon as the case is initiated.
Notably, a successful claimant in a civil forfeiture proceeding is entitled to attorney's fees, which encourages challengers and "innocent owners" to come forward and stake their claim to the property before it is forfeited by the Government, whereas in a criminal case attorney's fees are not available.
In a civil forfeiture case, the Government must file its complaint against the property within 90 days of the filing of any claim contesting an administrative forfeiture proceeding. If the Government fails to comply with this deadline, civil forfeiture of the property in connection with the offense for which it was seized is forever barred. In contrast, criminal forfeiture actions are not subject to any statutory deadlines.
Finally, and perhaps most importantly, because criminal forfeiture is part of sentencing, the forfeiture order imposed by a court in a criminal case is limited to the property involved in the particular offense for which the defendant was convicted. In contrast, civil forfeiture actions may be brought against any property derived from either the specific offense or from a course of conduct. Meaning, for example, criminal forfeiture in a drug case might be limited to the proceeds of the specific transaction charged in the indictment, but a civil forfeiture could reach all proceeds of someone's long-running career as a drug dealer.
While the body of law is complex (this post is certainly not exhaustive), and the concerns raised as of late will hopefully, in due time, be addressed in turn, it is important to remember the benefits of civil asset forfeiture to society as a whole.
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