THE REASONING BEHIND CIVIL FORFEITURE LAWS
Part of successfully defending against civil forfeitures involves a thorough understanding of why prosecutors and the Courts have relied so heavily upon them. If we are going to defend civil forfeitures on the merits – that is, defend them based on substantive issues, as opposed to technical grounds – showing that the reasons for civil forfeiture laws are not applicable to the case is crucial.
If you are facing a Georgia civil forfeiture or your property has been seized in Georgia, contact The Sessions Law Firm today. The article here, which was published in the New York Times, discusses the reasoning behind civil forfeitures.
WHY PROSECUTORS CHOOSE CIVIL FORFEITURE
TO THE EDITOR:
“Too Far on Forfeitures” (editorial, June 26) criticizes the civil forfeiture laws and suggests that “prosecutors favor the civil forfeiture approach because it requires a lower standard of proof.” Not so.
Prosecutors choose civil forfeiture not because of the standard of proof, but because it is often the only way to confiscate the instrumentalities of crime. The alternative, criminal forfeiture, requires a criminal trial and a conviction. Without civil forfeiture, we could not confiscate the assets of drug cartels whose leaders remain beyond the reach of United States extradition laws and who cannot be brought to trial.
Moreover, criminal forfeiture reaches only a defendant's own property. Without civil forfeiture, an airplane used to smuggle drugs could not be seized, even if the pilot was arrested, because the pilot invariably is not the owner of the plane.
Nor could law enforcement agencies confiscate cash carried by a drug courier who doesn't own it, or a building turned into a “crack house” by tenants with the knowing approval of the landlord.
By a vote of 8 to 1, the Supreme Court has rightly reaffirmed its historic approval of civil forfeiture as a way to take the profit out of crime and to take the instrumentalities of crime out of circulation. What we must focus on is not whether civil forfeiture is a proper tool of law enforcement but on making sure that the forfeiture procedures operate fairly.
The Justice Department has proposed legislation that would enhance the due process rights of property owners by creating a uniform “innocent owner” defense and placing the burden of proof on the Government in civil forfeiture cases.
In this way, we can improve the forfeiture laws while keeping them intact to seize the profits of drug traffickers, money launderers and swindlers.
GERALD E. MCDOWELL Chief, Asset Forfeiture & Money Laundering Section, Dept. of Justice Washington, July 2, 1996
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