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What are the typical penalties for forfeiture offenses?
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Typical Penalties for Forfeiture Offenses
Forfeiture is when the government seizes assets connected to a crime. There are two main types of forfeiture – civil and criminal. Civil forfeiture happens when the government sues the property itself, not the owner. Criminal forfeiture happens after someone gets convicted of a crime as part of their sentence.
There are a bunch of laws that let the government take property through forfeiture. Some of the main ones are 18 U.S.C. § 982 for criminal forfeiture and 21 U.S.C. § 881 for civil forfeiture related to drug crimes.
Fines and Jail Time
For criminal forfeiture, there will also be other penalties like fines or jail time. For example, 18 U.S.C. § 982 says for health care fraud, a judge can make someone forfeit money or property gotten from the crime in addition to normal fines under the law. There’s no limit on how much can be forfeited criminally.
Also, for some crimes like money laundering, instead of the fine listed, judges can fine people up to twice how much money they made from the crime. That’s on top of forfeiting the illegal money itself [see 18 U.S.C. § 229B(a)].
What Property Can be Forfeited
Lots of stuff can be forfeited, including:
- Money, cars, houses, or other assets owned by the defendant
- Property “used to commit or facilitate” the crime
- Proceeds from the crime, directly or indirectly
There’s even something called “substitute asset forfeiture” where if the defendant hid or got rid of the main property, prosecutors can try to take other assets instead [see DOJ guidelines].
Challenging Forfeiture
There are defenses people can use to avoid forfeiture or get their property back. For criminal forfeiture, you’d have to challenge the underlying conviction. But for civil forfeiture, you can argue:
- The property wasn’t involved in any crime
- You’re an “innocent owner” who didn’t know about criminal use
- Forfeiting the property would be unfair
Sometimes prosecutors will just drop a case if you can prove you need the property for basic living expenses. There are also rules about seizing structured settlement payments, which help accident victims.
Getting Property Back
If forfeiture gets overturned, the government has to return the property. If it was sold already, they repay however much money was made. This is for both civil and criminal forfeiture.
But it can be hard to get stuff back once seized. Many forfeiture cases settle because people can’t afford long court battles, even if they think police violated their rights when taking the property. Public defenders usually can’t help with civil forfeiture cases either.
There are some reforms being considered to fix this, like shifting the burden of proof to the government instead of owners, or letting owners sue police for misconduct.
State vs Federal Forfeiture
Most forfeiture happens at the state level, not federal. But state laws vary a lot. Some states have passed reforms to curb abuse, while others barely regulate forfeiture at all.
On the federal level, the Attorney General can suspend forfeitures if needed [see 18 U.S.C. § 983(j)]. This doesn’t happen too often though.
Criticisms of Forfeiture
Civil forfeiture is controversial because the owner doesn’t have to be convicted or even charged with a crime. Critics argue:
- It violates property rights and due process
- Gives police an incentive to seize assets for profit
- Harms innocent citizens more than criminals
- Encourages racial profiling in seizures
Reform advocates say conviction should be required for forfeiture in most cases. There should also be more transparency around seizure practices.
But police and prosecutors say civil forfeiture is a vital tool to disrupt major criminal operations by hitting them in the wallet. And the Supreme Court has upheld most forfeiture laws as constitutional.