Overview of asset forfeiture law in the United States

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Author: Stefan D Cassella
• Pages: 347-367
• Date: 24 May 2019
• Citation: (2004) 17 SACJ 347

Overview of asset forfeiture law

in the United States

STEFAN D CASSELLA*

Abstract

This article provides a brief overview of asset forfeiture law in the United States. It is

not intended to treat the subject or any of its sub-parts in depth. Rather, its purpose

is to acquaint the reader with the various purposes for which asset forfeiture is

employed as a law enforcement tool, with the types of property that can be

confiscated, and with the procedures that are available under federal law. It concludes

with a comparison of the relative merits of civil forfeiture versus criminal forfeiture.

Introduction to Asset Forfeiture

Asset forfeiture is an integral part of federal criminal law enforcement in the

United States. This brief introduction to federal forfeiture law attempts to

answer three questions: 1) Why is asset forfeiture important to law

enforcement? 2) What types of property are subject to forfeiture, and in

what circumstances? and 3) How is forfeiture accomplished?

Why do forfeiture?

There are many reasons to include the forfeiture of assets as part of a criminal

case. First, law enforcement agents and prosecutors want not only to arrest

wrongdoers and put them in jail for some period of time, but also to remove

the tools of the crime from circulation so they cannot be used again, either by

the wrongdoers themselves once they have gained their release, or by

members of their organisations. Thus, law enforcement wants to seize and

forfeit the guns, the airplanes, and the cars with concealed compartments

that are used for drug smuggling; it wants to take the computers, printers,

and other electronic devices used in child pornography, counterfeiting, and

identification fraud cases; and it wants to shut down the 'crack house' where

drugs are distributed to children on their way to school, to confiscate the farm

used for the marijuana-growing operation, and to close down the business

*



BS(Cornell) JD (Georgetown)

Deputy Chief of Asset Forfeiture and Money Laundering Section

of the United States Department of Justice.

The views expressed in this artide are solely those

of the author, and do not necessarily reflect the views or policies of the Department of Justice

or any of its agencies.

347

(2004) 17 SACJ 347

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348

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SACJ •

(2004) 17

used to commit insurance fraud, telemarketing fraud or to run a Ponzi

scheme.

1

In this sense, asset forfeiture is a form of incapacitation.

Secondly, in any case where the crime involves innocent victims, such as

property offences and fraud, asset forfeiture turns out to be the most effective

means of recovering property that may used to compensate the victims.

Indeed, restoration of property to victims in white-collar cases is the first

priority of law enforcement when it comes to disbursing forfeited property,

2

and much time and effort is expended in such cases to ensure that the

wrongdoer's assets are preserved pending trial so that they remain available

to be used for this purpose once the case is over.

Thirdly, asset forfeiture takes the profit out of the crime. Obviously, there is

an element of simple justice in ensuring that wrongdoers are deprived of the

fruits of their illegal acts. But there is also an element of general deterrence as

well. Surely the incentive to engage in economic crime is diminished if

persons contemplating such activity understand that there is high likelihood

that they will not be allowed to retain any profits that might flow from their

temporary success. Conversely, convicting defendants but leaving them in

possession of the riches of wrongdoing gives others the impression that a life

of crime is worth the risk.

There is also the matter of the message that is sent to the community of

law-abiding citizens when a notorious gangster or fraud artist is stripped

of the trappings of what may have appeared to be an enviable lifestyle.

Criminals typically spend their spoils on expensive homes, airplanes,

electronic goods and other 'toys' that everyone else wishes that they had

the resources to acquire. Taking the criminals' toys away, as law enforcement

agents typically put it, not only ensures that criminals' enterprises are

deprived of their economic resources, and that funds are available for

restitution to the victims; it also sends a signal to the community that the

benefits of a life of crime are illusory and temporary at best.

Law enforcement professionals would much prefer that persons passing an

expensive cliffside mansion on the Pacific Coast say, 'Remember Mr Big that

used to control the syndicate here? There is the house he used to own. The

government has it now,' and not 'There is Mr Big's house. What a place! And

he still owns it too!'

1

A form of pyramiding in which money paid by later investors or contributors is used to pay

inflated returns to earlier investors; named after Charles Ponzi, who ran such a scheme during

1919-1920 in Boston, United States. Charles Ponzi collected $9,500,000 from 10,000 investors

by selling promissory notes promising payment of a fifty per cent profit in forty-five days. The

scheme collapsed and thousands of investors were left destitute.

2

See 18 U.S.0 981(e)(6) (authorises the government to use forfeited property to pay restitution,

in civil forfeiture cases, to the victims of the underlying crime); 21 U.S.0 853W (same for

criminal forfeiture).

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