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Who keeps the proceeds from forfeited assets?
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Who Keeps the Proceeds from Forfeited Assets?
Forfeiture is when the government takes away assets connected to a crime. But who exactly keeps the money and property from forfeited assets? This issue involves a complex web of laws and regulations. Let’s break it down step-by-step.
What is Asset Forfeiture?
Asset forfeiture refers to the government seizing property involved in a crime. This could include cash, cars, boats, houses, or any valuables used to commit or resulting from illegal acts.
There are two main types of forfeiture:
- Criminal forfeiture – Happens after someone is convicted of a crime. The assets seized are part of their criminal penalty.
- Civil forfeiture – Law enforcement can take assets without charging someone with a crime. They just need to show the property is connected to criminal activity.
Asset forfeiture has a long history dating back centuries. The basic idea is to disrupt criminal enterprises by taking away their resources. But in recent decades, many have criticized forfeiture as going too far and violating civil liberties.
Where Do Forfeited Assets Go?
Federal agencies and local law enforcement get to keep most of the cash and property from forfeitures. Specific rules vary between states and on the federal level.
Federal Forfeiture
Several federal agencies have the power to seize assets, including:
- FBI
- DEA
- ATF
- ICE
- Customs and Border Protection
The Department of Justice runs a program called Equitable Sharing to distribute forfeited assets. In general, federal agencies keep 20% while state and local police get 80%. The assets go into their budgets to fund equipment, training, and operations.
Any forfeited cash sitting in the Assets Forfeiture Fund for over 3 years goes into general government revenue. But this is a tiny fraction, less than 1% of the total.
State Forfeiture
Most states have their own asset forfeiture laws. The proceeds typically go back to law enforcement agencies and prosecutors. However, some states have passed reforms:
- New Mexico and Nebraska – Forfeiture proceeds go into the general fund.
- Maryland – Funds education programs.
- Minnesota – Distributes to public schools and addiction treatment.
A few states have also banned civil forfeiture, requiring a criminal conviction first. But in most of the country, law enforcement still directly benefits from seizures.
The Controversy Over Policing for Profit
Critics argue asset forfeiture creates dangerous incentives for law enforcement. Police and prosecutors can directly profit from seizures, potentially causing overreach. This issue is often called “policing for profit.”
For example, police may focus drug enforcement on low-income areas where property is easier to seize. There are documented cases of police abusing forfeiture to take cars, cash and homes without evidence of underlying crimes.
However, supporters argue asset forfeiture is a vital tool to disrupt organized crime. It provides resources for underfunded police departments. They claim there are already enough protections against abuse in the system.
Reform advocates have had some success at the state level. But efforts to change federal forfeiture laws have stalled so far. This remains an active debate in Congress and state legislatures.
How People Can Challenge Forfeitures
There are options to get seized property returned. But the process can be difficult without legal help.
Federal Forfeiture Challenges
To challenge a federal forfeiture, you generally have to file a claim with the agency that seized the assets. This starts an administrative process to review the case.
If the agency denies your claim, you can file a lawsuit in federal court. But you have a short deadline – usually 30-60 days. These cases can turn on complicated legal issues over burdens of proof and government overreach.
The Institute for Justice is one group that provides free legal help for forfeiture challenges. But you need a dedicated lawyer to realistically contest many seizures.
State Forfeiture Challenges
Each state has its own procedures for forfeiture challenges. Typically, you start by filing a claim petition with the local prosecutor or law enforcement agency.
If they reject the petition, you may have to file a lawsuit in state court. Deadlines vary in each jurisdiction – from as little as 10 days to over a year. Again, getting a qualified attorney is usually necessary.
Some states also allow forfeiture challenges through administrative hearings. Your exact rights depend on the laws where you live.
Innocent Owner Defenses
What if you owned the seized asset but weren’t involved in criminal activity? You may have an “innocent owner” defense.
Federal law and some states protect innocent owners from forfeiture. You have to prove:
- You legally own the property
- You did not know about or consent to the crime
- You took reasonable steps to prevent illegal use
However, the burden is generally on you to assert and prove your innocence. And some states do not recognize innocent owner defenses at all.
Should Forfeiture Laws Change?
Asset forfeiture sparks fierce debate over security versus civil rights. There are good-faith arguments on both sides.
Reformers want stronger protections for innocent owners and limits on policing for profit. But law enforcement says forfeiture disrupts dangerous criminals who exploit current laws.
Ultimately, voters and lawmakers in each state must decide how to balance public safety and due process. This issue will likely remain controversial for years to come.
The Bottom Line
Most cash and property from forfeitures go back to the law enforcement agencies that seized them. This allows police to fund their own equipment and operations. Critics argue it encourages overreach, while supporters say it bolsters public safety.
Innocent owners do have some defenses to recover their seized assets. But forfeiture laws still tend to favor the government, placing a high burden on citizens to prove their innocence.
Reforming forfeiture remains an active debate. In the meantime, anyone facing seizure of their property should seek legal help to understand and assert their rights. With proper representation, some improper forfeitures can be successfully challenged.
References
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