Forfeiture is the government seizure of property connected to illegal activity. Forfeitures are utilized by the federal and state law enforcement in the ongoing "war on drugs."
Law enforcement has asserted that it is a necessary and effective deterrent to drug crime, while opponents argue that existing procedural safeguards result in too many innocent parties having their property taken away, with little or no recourse for recovery. If your property or assets have been the subject of a criminal or civil forfeiture, it is important to consult with legal counsel to understand your rights and options.
Property Subject to Forfeiture
Government authority to seize property connected to illegal activity comes from federal statutes, as limited by those laws and the Constitution. Authorizing provisions of state and local statutes tend to be similar to federal law. The United States Supreme Court, in Bennis v. Michigan identified certain categories of property subject to forfeiture:
Contraband - property for which ownership itself is a crime (e.g. illegal drugs, smuggled goods)
Proceeds from illegal activity - property that results from, or can be traced back to, illegal activity
Tools or instrumentalities used in commission of crime - property used to commit a crime (e.g. cars, boats, real estate)
Two Forms of Forfeiture: Criminal and Civil
Criminal forfeiture is punitive. The government seizes a convicted person's property as a part of the sentence. Because it is a criminal proceeding, a defendant is afforded various Constitutional protections. The government only needs to show by a preponderance of the evidence that the defendant obtained the property around the time of the crime and that it was unlikely it came from any other source. The burden then shifts to the defendant to prove this is not the case.
By contrast, civil forfeiture actions proceed against the property itself, which is the defendant in the case rather than the owner. A criminal charge or conviction is not necessary before the government can seize.
Forfeiture proceeds fund law enforcement activity. Because of law enforcement's strong financial incentive to use civil instead of criminal forfeiture, critics claim that the practice has moved from being a means to fighting drug-related crime, to being an end in itself.
If your property has been seized by the government, contact an attorney immediately. You have strict time constraints to respond to the suit to confiscate your property. Failing to respond to the suit can result in a default judgment being entered against you. You may be able to post a bond to get your car, boat, motorcycle, etc. from the government while the proceeding is pending. You may also be able to serve some discovery on the government to make them explain certain facts it intends to introduce at your forfeiture hearing.