Civil forfeiture

Civil forfeiture refers to those laws and regulations which empowers the government to seize assets like Cars, Money, Property etc. without filing criminal charges against the person from whom assets are taken. The State and Central government can take your stuff without charging you with a crime through as a legal process called civil forfeiture.

Before continuing with the topic, it is important to understand what amounts to Civil Forfeiture and which all property can be forfeited by using Civil Forfeiture. So the Government can seize your personal property if they suspect and found that the property concerned has been involved in any crime or if the property is from proceeds of a crime. So the Police or Investigation Agencies can take your money, your personal possessions, and even your house without ever charging you with a crime.

This process generally remains controversial as the Law enforcement agency can forfeit a person property even if, the owner of the property isn’t guilty of the crime. Civil asset forfeiture proceedings charge the property itself with involvement in a crime.

So in other words, Civil forfeiture, is a legal process that illegally enables the Government to seize property or any other assest belonging to a person suspected of committing a crime or belonging to proceeds of a crime. The main purpose of the civil forfeiture is to provide an effective remedy and means of prosecuting criminals and fighting organized crime.

The process of Civil Forfeiture began in the early 1980s, where the governments and law enforcement agencies in the United States of America and in other parts of the world placed an ever-increasing emphasis on targeting the activities of organized criminal activity. Civil forfeiture was the culmination of this enforcement approach.

Because civil forfeiture allows the assets to be pursued and seized through the civil courts, moreover the burden of proof which was earlier placed completely on the state is reduced from “beyond a reasonable doubt” to a “balance of probabilities.” In other words, governments can confiscate money or assets where only a “reasonable suspicion” may exist that the cash or assets constitute the proceeds of crime. The onus of proof is now shared between the state and the defendant; that is, unlike a criminal trial where there is no obligation by the defendant to prove innocence, in a civil forfeiture process the defendant must often prove that the assets in question were derived through legal and legitimate means.

Civil forfeiture can also be considered as a legal fiction which pretends to try inanimate objects for their involvement with criminal activity. Civil forfeiture actions are in rem proceedings, which means “against a thing.”

These concerns are exacerbated by legal procedures that make civil forfeiture relatively easy for the government. Here are four ways that civil forfeiture stacks the deck against property owners:

• Burden of Proof: For the government to keep a person’s property using civil forfeiture, it must prove that the property is connected to criminal activity. But where criminal forfeiture requires the government to prove someone is guilty “beyond a reasonable doubt,” the government can prevail under much less rigorous standards in civil forfeiture cases.
• Guilty Until Proven Innocent: Although many jurisdictions provide an “innocent-owner” defense that allows owners to get their property back if they had no idea that it was involved in a crime, most jurisdictions presume that owners are guilty and force them to prove their innocence.
• Legal Representation: Anyone who has watched a crime drama knows that the government must provide criminal defendants with an attorney if they cannot afford one. But civil forfeiture victims must either pay for a lawyer which in many cases can cost more than the seized property is worth or go it alone.
• “Equitable” Sharing: Federal law provides a loophole called “equitable sharing” to law enforcement in states with good civil forfeiture laws. This program allows state law enforcement to turn seized assets over to the federal government, which forfeits the property under federal law. In turn, the federal government gives up to 80 percent of the forfeited property back to the state agency for its own use, even if state law would have required those proceeds to go into a general fund.

The power of law enforcement to keep and use the property with the Law Enforcement Agencies help them to take properties using civil forfeiture to raise the specter of agencies with their own off-budget slush funds. But there is a remedy to it, requiring the agencies who did forfeiture to report the civil forfeiture proceeds they take in and how they spend them should be a simple reform that everyone can agree upon. But many states do not require such reporting and, even when they do, some law enforcement agencies simply ignore their legal duties. With such little accountability, it should be no surprise that abuse in the world of civil forfeiture is rampant.

Being innocent does not mean that a state has to return your property. The Supreme Court of the United States has held that the “innocent owner” defense is not constitutionally required. Furthermore, even in states where you do have an innocent owner defense, the burden is typically on you. Your property is presumed to be guilty until you prove that you are innocent and that your property therefore should not be forfeited.

It is time to end civil forfeiture. People shouldn’t lose their property without being convicted of a crime, and law enforcement shouldn’t be able to profit from other people’s property.

[Frequently Asked Questions (FAQ)]

Q. What can an innocent person do after his property is forfeited using Civil Forfeiture?

A. The innocent person should file a case against the Law Enforcement agency as many of such cases are not filled and it gives an undue advantage to such agencies.

{The author, Kanav Gupta is a Third-year B.A.L.L.B(H) student at Vivekananda Institute of Professional Studies, GGSIPU, Delhi.}

[1] Study.com https://study.com/academy/lesson/civil-forfeiture-definition-laws-abuse

[2] Haritage.com https://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know

[3] Britanicca.com https://www.britannica.com/topic/civil-forfeiture

[4] Endforforfieture.com http://endforfeiture.com/what-is-forfeiture-more/