What Is Criminal Forfeiture?
Criminal forfeiture is the taking of your property by the state, due
to its relationship to criminal activity. Forfeiture laws vary from state
to state, and can be broader or narrower depending upon the crime committed
and the laws of your jurisdiciton. However, typically , criminal forfeiture
may be sought when the property is used in the commission of a criminal
offense, or was obtained through criminal activity.
When Does Criminal Forfeiture Occur?
Criminal forfeiture occurs when, after the owner is convicted of a crime,
and where forfeiture is allowed under the laws of the prosecuting jurisdiction,
it is demonstrated that the property has a sufficient relationship to
the criminal activity to justify depriving the owner of his property rights.
For example, your state may have a law that gives the judge the right
to forfeit your car, if you are convicted of drunk driving or of soliciting
a prostitute. The prosecutor's office may be able to seek forfeiture of
your property -- even your business or home -- if you are convicted of
certain offenses, such as drug trafficking or racketeering.
If you are facing a charge involving possible criminal forfeiture, you
can include the issue of forfeiture (both criminal and civil) in any plea
negotiations that may occur with the prosecutor.
What Are My Rights?
Your rights, and the procedure involved in criminal forfeiture, will
vary significantly from state to state, and even depending upon the law
you are accused of breaking. If you are facing criminal forfeiture of
your propery, you may be given notice in advance of your prosecution.
Sometimes, criminal forfeiture proceedings will be commenced at the time
of, or after conviction.
The manner in which forfeiture will be handled, and whether the proceedings
are "criminal" or "civil" in nature, will vary significantly
from state to state. It is usually advisable to seek assistance from an
attorney, if you are facing any type of forfeiture action.
What Is "Civil Forfeiture"?
Civil forfeiture is similar in many ways to criminal forfeiture. However,
while criminal forfeiture means to impose an additional penalty upon the
owner of property for his wrongful conduct, a civil forfeiture action
is brought against the property itself. (You will see funny case names
arising from civil forfeiture cases, such as "United States v 336
Willow Street".) For criminal forfeiture to result, the owner of
the property must be convicted of a crime, whereas civil forfeiture can
occur even if the owner is acquitted. In some cases, the property owner
won't even be charged with a crime. Civil forfeiture actions must demonstrate
"beyond a reasonable doubt" that the property has a sufficient
relationship to illegal activity to justify its forfeiture under the law.
Criminal cases are tried under the much higher standard of, "Guilty
beyond a reasonable doubt."