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Can the Government Take Away My Property?
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Can the Government Take Away My Property?


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Through the process of forfeiture, the government may be able to take away the property of a civilian. This may be because the individual is involved in criminal activity or because he or she owns property that was involved in criminal activity.

Overview

Asset forfeiture is a process that allows a governmental agency to seize proceeds that are derived from crimes. This usually includes drug trafficking and organized crimes, but it can also apply to other cases. The rationale behind asset forfeiture policies is that taking away the tools of crime will help reduce the occurrence of crime and weaken those organizations that support crime. There are two different types of asset forfeiture: criminal and civil. State laws usually set out the parameters for such actions for state law enforcement officers and agencies while federal law on the subject pertains to federal agencies, such as the DEA or FBI. 

Criminal Asset Forfeiture

A criminal asset forfeiture is an in personam action, meaning that it is an action that is made against the individual. If the person is convicted of a crime, forfeiture can be used as punishment. Criminal asset forfeitures are judicial in nature, meaning that they must be decided by a judge or magistrate. The property that is being considered for feature is named in the same indictment in which the defendant’s charges are proclaimed. Usually, the standard of proof is beyond a reasonable doubt before the property can be forfeited. The jury is responsible for determining whether the criminal defendant is guilty of the underlying offense and whether the property was illegally tainted.

If a third party had an interest in the property that is forfeited, a post-forfeiture hearing may be requested by the third party. 

Civil Asset Forfeiture 

A civil asset forfeiture is considered an in rem action, meaning that it is an action that is made against the property, not the person. In civil forfeiture actions, specific property that is closely connected with illegal activity is usually named. The property owner does not have to be convicted of a crime or even charged with one in order to lose his or her property. There are various ways in which a civil forfeiture action can be completed, namely administrative, judicial or summary procedures. 

These different procedures follow a different format and have different rules. For example, the value of the property may be limited to a certain extent. In some instances, property can become forfeited if there is not a prompt enough response to contest the action. 

The burden of proof for an agency to seize property is usually probable cause. The owner may be notified by mail of the government’s intent. This burden is significantly lower than that of proof beyond a reasonable doubt, only requiring the government to show that there is a reasonable ground for belief that the property was involved in crime. 

Arguments against Forfeiture Actions

Many proponents have stated arguments against such actions, particularly civil forfeiture actions. They claim that such laws create an incentive for law enforcement agencies to seize property in order to generate revenues for their departments. Additionally, these proponents argue that it is usually innocent people who lose their belongings simply due to suspicion of criminal activity. To support this argument, proponents look to the substantial increase in the forfeiture fund from the time that it started to the current balance. 

Rather than facing a long and expensive court battle, many civilians simply let their property go. Individuals who lose their property to civil forfeiture do not have a constitutional right to an attorney. The onus is usually on the property owner to show that he or she was innocent of any criminal activity, had no knowledge of criminal activity and that the property had not been used in a crime.

Copyright HG.org

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author
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