Criminal Defense Lawyers

How do federal and state forfeiture laws differ?

Introduction

Forfeiture laws allow the government to seize assets connected to criminal activity. However, federal and state forfeiture laws can differ quite a bit in terms of how they are applied and what protections exist for property owners.

This article will provide an overview of some key differences between federal and state forfeiture laws in the United States. We’ll look at aspects like the burden of proof, whether criminal conviction is required, reporting requirements, and more.

Federal vs State Burden of Proof

One major difference is the burden of proof in federal vs state civil forfeiture proceedings. At the federal level, the government has to establish probable cause to seize property. This is a relatively low legal standard that only requires reasonable belief of a connection between the assets and criminal activity.

But in many states, the government has an even lower burden of proof for forfeitures. New Mexico, for example, uses a “preponderance of evidence” standard, which only requires that illegal activity was more likely than not involved. Some states only require an officer’s “good faith belief” of a connection. So it can be easier for state law enforcement to seize and forfeit property compared to federal agencies.

Criminal Conviction Requirements

Another major difference is that federal law generally requires a criminal conviction before assets can be permanently forfeited through criminal forfeiture. So if federal prosecutors want to forfeit property of someone involved in criminal activity, they typically need to first secure a guilty verdict against that person.

But many states allow civil asset forfeiture without requiring any criminal charges against the property owner, much less a conviction. This means state law enforcement can often permanently keep seized assets even if there is little evidence that the owner actually committed any crime.

Reporting Requirements

The federal government also has much more stringent reporting requirements around asset forfeiture than most states.

For example, the federal Civil Asset Forfeiture Reform Act (CAFRA) requires federal agencies to file annual reports with extensive details on all their forfeiture activities. This includes data on the types of assets seized, whether forfeiture proceedings were contested, whether assets relate to criminal convictions, and more.

In contrast, many states have very limited statistical reporting around forfeitures. And some states, like Georgia, have virtually no transparency laws at all for asset forfeiture data and spending. This lack of oversight makes state civil forfeiture programs more prone to potential abuse.

Distribution of Forfeited Assets

There are also key differences in terms of what happens to assets after they are forfeited.

At the federal level, forfeited assets go into general funds like the Department of Justice Assets Forfeiture Fund. Federal agencies can draw on these funds for certain purposes, but there are restrictions on usage meant to avoid direct profit incentives.

But many states have far fewer controls around spending of forfeited assets. In some states, law enforcement agencies get to keep up to 100% of assets they seize for their own budgets. This creates a clear profit motive to pursue forfeitures more aggressively.

Innocent Owner Defenses

Both federal and state laws contain some protections for innocent property owners, but they can still differ quite a bit in scope and application.

For example, federal law provides an “innocent owner defense” which requires prosecutors to return seized property if the owner can show they did not consent to or have knowledge of illegal uses. But some states put the burden on owners to prove their innocence, without requiring the state to provide evidence of guilt.

The strength of innocent owner defenses also varies by state depending on legal precedents. So an innocent owner defense claim may be more likely to succeed under federal forfeiture laws rather than some state laws.

Appeals Process

There can also be notable differences in forfeiture appeals processes at the state vs federal level. This relates to factors like deadlines for filing appeals, whether administrative appeals are required first, standard of review, and more.

As one example, CAFRA provides for de novo review in federal court if an administrative appeal fails. This allows for a completely fresh look at the merits. But not all states provide the same level of review in forfeiture challenges.

So while forfeiture laws aim to serve similar purposes at both state and federal levels, the exact procedures, burdens, and protections can still vary quite a bit between jurisdictions.

Conclusion

In summary, some of the key differences between federal and state civil forfeiture laws include:

• Burden of proof required
• Whether criminal conviction is necessary
• Reporting requirements around forfeitures
• Distribution of forfeited assets
• Strength of innocent owner defenses
• Appeals process

Understanding these differences is important for anyone potentially subject to forfeiture laws. Stronger protections generally exist at the federal level, but state laws still impact the vast majority of forfeitures.

Reform advocates argue that strengthening protections around asset forfeiture at all levels helps protect due process rights. But others believe existing forfeiture laws are necessary crime-fighting tools if applied responsibly. Debates around balancing these interests are sure to continue evolving legal standards over time.

Citations

[1] Asset Forfeiture Laws by State

[2] Forfeiture Definition

[3] Types of Federal Forfeiture

[4] Civil Asset Forfeiture Reform Act

[5] What is Civil Asset Forfeiture?