What Are Criminal Forfeiture and Civil Forfeiture

Asset forfeiture is a process through which the state attempts to take ownership of somebody's property, usually because the property is alleged to have been used to commit a crime or was obtained through illegal activity. Forfeiture may proceed in one of two manners:

  • Criminal Forfeiture: In association with a criminal charge against a person, the government brings an action against property that it alleges was used for the purpose of criminal activity or obtained through the commission of the crime.
  • Civil Forfeiture: The government seizes and attempts to take ownership of assets from a person suspected of illegal activity, even though the person is not charged with a crime.

What Is Criminal Forfeiture?

Criminal forfeiture is the taking of personal property or real estate by the state due to its relationship to criminal activity. Criminal forfeiture may be sought when the property is used in the commission of a criminal offense, or where the property was obtained through criminal activity.

Forfeiture laws vary from state to state, and may be broader or narrower depending upon the crime committed and the laws of the state or jurisdiction in which the crime is committed or in which the property is located.

When Does Criminal Forfeiture Occur?

Criminal forfeiture occurs when, after the owner or person in possession of the property 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.

Criminal forfeiture is part of the punishment imposed on the defendant convicted of a crime.

Normally criminal forfeiture does not affect the rights of third parties, such as secured lenders or co-owners, although it is important that any third party act diligently to ensure that the state does not dispose of the property before becoming aware of their interest.

What is Civil Forfeiture

Civil forfeiture is similar in many ways to criminal forfeiture. However, while criminal forfeiture imposes an additional penalty upon the owner of property for his wrongful conduct, a civil forfeiture action is brought against the property itself. This type of case is known as an in rem action, a Latin term meaning "against the property".

Civil forfeiture takes one of two basic forms:

  • Civil Judicial Forfeiture: An action taken against the property through a civil suit filed in court.

  • Administrative Forfeiture: An action taken by a government agency to forfeit property without going through the courts. For example, when illegal items are seized by customs at a border crossing, or when controlled substances or drug paraphernalia are seized by the police, it is not necessary for the state to pursue a legal action in order to declare that property forfeit.

For civil judicial forfeiture, as the defendant is property or real estate, the names of the cases may seem odd, such as "United States v 773 Hutchins Avenue" or "United States v Seven Thousand Dollars in U.S. Currency".

Criminal Forfeiture vs. Civil Forfeiture

For criminal forfeiture to occur 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. For example, the owner of property that is used to grow or manufacture a controlled substance may find that the property is the subject of a civil forfeiture proceeding based upon the activities of a resident or even a tenant.

Civil judicial forfeiture actions must demonstrate by a preponderance of the evidence that the property has a sufficient relationship to illegal activity to justify its forfeiture under the law - that is that it is more likely than not that such a relationship exists.

Criminal cases are tried under the much higher standard of, "guilty beyond a reasonable doubt."

How to Oppose Forfeiture

Your rights, and the procedure involved in criminal forfeiture, will vary significantly from state to state, and may vary further depending upon the law that you are accused of breaking. The manner in which forfeiture will be handled, and whether the proceedings are criminal or civil in nature, may vary not only by state law but at the discretion of the prosecutor.

Criminal Forfeiture

If you are facing criminal forfeiture of your property, you may be given notice in advance of your prosecution. Sometimes criminal forfeiture proceedings will be commenced at the time of, or after, conviction. For criminal forfeiture, the possibility of forfeiture can only be defeated by avoiding conviction.

A defendant who faces a criminal charge that involves possible forfeiture may include the issue of forfeiture in any plea negotiations that may occur with the prosecutor. For example, the plea may be conditioned upon the prosecutor agreeing not to pursue forfeiture, or with an agreement about what property will be subject to forfeiture and what property will be excluded from forfeiture and returned to the owner.

Civil Forfeiture

For civil judicial forfeiture, the owner of the property must make timely appearances in the judicial or administrative proceedings involved in the forfeiture action, and present a defense to the proposed forfeiture. Due to differences in state law, it's necessary to research the forfeiture laws of the state in which civil judicial forfeiture is proceeding in order to learn the procedure and how to properly assert a defense.

In some states, civil forfeiture proceedings are initially administrative in nature and can be very difficult to win. For civil administrative forfeiture, any effort to dispute the grounds for forfeiture would initially be made through administrative proceedings with that agency. Once the person seeking return of the property has exhausted the administrative appeals process, it is possible to bring a legal action in court to attempt to obtain a reversal of the agency's decision.

If you are facing any type of forfeiture action, it is wise to consult a lawyer.

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Apr 13, 2018.