Asset forfeiture is the seizure of assets by the state. The Assets Forfeiture Program in the United States comprises the forfeiture of assets that were generated from, or were used to facilitate a crime.

The main intention of these laws is said to be directed towards the security and safety of the public. This is achieved by confiscating assets generated through crime as well as assets used to cause and perpetuate criminal activities. The intention is to halt, break apart and disable criminal organizations and their resources, especially after the criminals and perpetrators of a crime have been convicted and imprisoned.

A brief historical background

As with many other modern American Laws, the concept of forfeiture in the United States is based on old English Common Law and over time has been infused with U.S. court statutes and decisions to form the Law in its current state.

English common law identified three different types of forfeiture. These include:

1. Escheat upon attainder; Where property owned by an individual is transferred to the crown or state upon their death (escheat) as a result of being condemned to death due to committing a serious capital crime, that is, a felony or treason. Attainder (implies ‘staining of blood’ as a result of crimes). Due to this ‘staining’ a convicted person, and anyone in his or her blood line, loses the right to property owned by that convicted person.

2. Deodand forfeiture; is forfeiture that allowed courts to take an instrument, object or thing that caused an offense and more specifically death of a person. The doctrine of Deodand allowed the court to seize the property of an owner even if the owner was not directly guilty of the injury or death. For example, if an ox caused an accidental death of a person, the ox would be seized from its owner. The Deodand had the implication of being a sort of penance towards God and the aggrieved party.

3. Statutory forfeiture; is the forfeiture based on written laws. This was the main kind of forfeiture adopted from old English common law that was recognised in American colonies at the beginning. However, to some extent, deodand forfeiture was also absorbed and still exists in some current forms.

In American history, early uses of forfeiture were applied to extraordinary cases such as the confiscation of pirate ships and smugglers contraband but after the American civil war, forfeiture was adopted for less extraordinary abuses such as tax-revenue violations.

Since early American history, from the times when smugglers brought in illegal imports under the noses of the British navy, to the present times when law enforcement has benefitted from

forfeiture, forfeiture laws have had a tumultuous existence and have not always been favoured by the public.

Modern Interpretations: Forfeiture and the war on drugs and other crimes

In 1970 the Comprehensive Drug Abuse Prevention and Control Act or the so called Forfeiture Act was enacted by congress and allowed federal prosecutors to seize assets owned by people convicted in federal court for dealing in drugs. The Act was rarely successfully used because it limited forfeiture to continuing criminal enterprises.

Apart from the war against drugs, asset forfeiture has also been used in other illegal activity including some of the following cases:

1. Money laundering cases,
2. Asset forfeiture in ammunition, explosives, firearms, tobacco, alcohol, currency, conveyances and specific real property cases,
3. Criminal violations including organised crime, white collar crime, computer crimes, public corruption, illegal technology, terrorism investigations and other violent crime.
4. Civil actions of property acquired or used to perpetrate crime.
5. Asset forfeiture of assets used in crime done through the postal service,
6. Asset forfeiture in assets used in health care fraud, counterfeit medicine and pharmaceuticals, adulterated or contaminated food and product tampering.

2 main amendments to the Forfeiture Act that have a huge impact on current law

1. In 1978 the forfeiture Act was amended to allow the forfeiture of anything intended to be used or used by a person to purchase illegal drugs. Through this amendment, the federal government could seize property from the person of an individual suspected of committing a crime without charging them for a crime. This type of forfeiture has its basis on the principles of deodand forfeiture of old English common law.

2. The Forfeiture Act was again amended in 1984 through the Comprehensive crime control act that expanded seizure from personal chattels to forfeiture of real property including land and buildings, used to store or produce illegal drugs.

Currently courts allow forfeiture of land and buildings whether or not they were used to store or produce illegal drugs.

Asset forfeiture and the burden of proof

In civil forfeiture, the burden of proof that the authorities have to justify asset forfeiture is very low. In fact reasonable belief is a basis for forfeiture and can be based on circumstantial evidence and hearsay. In criminal forfeiture, however, the government will only be allowed to keep seized property if they can prove the defendant’s guilt beyond reasonable doubt.

Other forfeiture laws

The Racketeer Influenced and Corrupt Organizations Act (commonly known as the RICO Act), is another popular vehicle used by the state in the forfeiture of property. The RICO Act was enacted as part of the organized crimes Control Act of 1970 and it allows the seizure of property by the state from persons engaged in racketeering including murder, perjury, kidnapping, arson, extortion, bribery, gambling or narcotics. In 1984 Obscenity laws were added to the list of racketeering offences and these include selling illegal pornography.

Asset forfeiture, law enforcement and the different points of view

In recent times there has been a lot of public outcry regarding asset forfeiture laws especially with regards to the forfeiture laws allowing law enforcement agencies to directly benefit financially from the proceeds of asset forfeiture.

On one hand, some legal scholars argue that this is a perversion of the law enforcement agencies that are meant to fight crime and further argue that law enforcement agencies can easily become corrupted because they can easily begin to depend on such seized property.

On the other hand, supporters of forfeiture laws argue that property seized and used by law enforcement agencies to supplement budgetary allocations are useful in community based programs that reduce crime and facilitate and build the capacity of law enforcement agencies to fight crime.