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Understanding Criminal vs. Civil Asset Forfeiture in New York City
Understanding Criminal vs. Civil Asset Forfeiture in New York City
Asset forfeiture is a legal process that allows law enforcement to seize assets, like cash, cars, or property, that they suspect are connected to criminal activity. There are two main types of asset forfeiture – criminal and civil. The key difference is that criminal forfeiture requires a criminal conviction, while civil forfeiture does not.
Criminal Asset Forfeiture
Criminal asset forfeiture is when property is seized and forfeited as part of a criminal prosecution. This means that prosecutors must first obtain a criminal conviction, and then can move to forfeit any assets connected to the crime as part of the defendant’s sentence[1].
For example, if someone is convicted of drug trafficking, the cash profits from the illegal drug sales could be criminally forfeited after the conviction. The forfeiture is part of the criminal proceedings and sentence.
In New York, there are limited options for criminal asset forfeiture[3]:
- For felonies related to controlled substances under the Penal Law Article 480
- For enterprise corruption felonies under the Organized Crime Control Act
These statutes have strict requirements, like requiring prosecutors to prove forfeitability beyond a reasonable doubt. This high burden makes criminal forfeiture rarely used compared to civil forfeiture[3].
Civil Asset Forfeiture
Civil asset forfeiture allows law enforcement to seize assets without having to first obtain a criminal conviction. Instead, the government files a civil lawsuit against the asset itself, not the property owner[2].
Because it’s a civil action, the government only needs to demonstrate there is a preponderance of evidence connecting the asset to criminal activity. The property owner can challenge the forfeiture, but the burden is on them to prove their innocence[4].
Law enforcement uses civil asset forfeiture to[1]:
- Take tools of crime out of circulation
- Recover assets for victims
- Deter crime by taking away profits
- Punish wrongdoing
Property subject to civil forfeiture includes[4]:
- Cash proceeds from illegal activity
- Facilitating property like cars, houses, tools used to commit the crime
- Contraband like illegal drugs or unlicensed weapons
Most civil forfeiture cases are federal, although New York state and local law enforcement can also pursue civil forfeiture under state law.
Key Differences Between Criminal vs. Civil Forfeiture
There are some important distinctions between criminal vs. civil asset forfeiture:
Criminal
- Requires criminal conviction first
- Higher burden of proof (beyond reasonable doubt)
- Rarely used in NY
Civil
- No conviction necessary
- Lower burden of proof (preponderance of evidence)
- More commonly used by law enforcement
Both
- Allow seizure of assets connected to criminal activity
- Assets can be seized before conviction/forfeiture
- Forfeited assets go to law enforcement agencies
Controversies Around Civil Asset Forfeiture
While civil asset forfeiture gives law enforcement important tools, there are controversies around its use[5]:
- Incentive for policing for profit: Agencies can keep forfeiture proceeds, which critics argue incentivizes seizures.
- Circumvents criminal justice system: Allows punishment without criminal conviction.
- Disproportionately impacts poor and minorities: Lack resources to fight back.
- Potential for abuse: Standards for seizure are low compared to criminal law.
Reforms have aimed to add more protections like requiring convictions in some cases, limiting how agencies can use forfeiture funds, and increasing burden of proof. There are ongoing debates about balancing law enforcement powers with civil liberties.
Fighting Civil Asset Forfeiture
If you believe assets were wrongly seized, here are some tips[1][2]:
- Get a lawyer: Asset forfeiture law is complex, a lawyer can protect your rights.
- File a claim: Contesting the forfeiture by filing a claim is the main way to oppose it.
- Negotiate settlement: Many cases end in a settlement returning some assets.
- Argue improper seizure: Challenge if seizure violated rights or lacked proper evidence.
- Innocent owner defense: Argue you didn’t know of any criminal activity.
- Request hardship release: If forfeiture causes substantial hardship.
With proper legal help, many people are able to recover some or all of their assets seized through civil forfeiture.