Chapter 2: Courts Controversy And Crime Reduction

Chapter 2 Courts Controversy Reducing Crime P 44asset Forfeit

Chapter 2 Courts Controversy Reducing Crime (p. 44) Asset forfeiture involves government seizure of the personal assets obtained from, or used in, a crime. Assets refer to property, businesses, cars, cash, and the like. For example, a car used in the distribution of illegal drugs may be forfeited to the government. Asset forfeiture was part of British common law as early as 1660.

More recently, it is identified with the Racketeer Influenced and Corrupt Organizations Act (RICO for short), enacted by Congress in 1970. Congress was concerned about the infiltration of organized crime into the regular business marketplace and sought to discourage such activities not only by imposing criminal penalties but also by making property obtained from the profits of the illegal enterprise subject to forfeiture. Thus, drug dealers who pour their profits into a restaurant can have the restaurant seized by government agents. But asset forfeiture is not limited to criminal actions. The more potent form of asset forfeiture is civil in nature.

The government is proceeding not against a person but against the property in what is termed an in rem procedure (a lawsuit brought against a thing rather than against a person). Through the years, Congress has greatly expanded the scope of asset forfeiture, and nearly all states have enacted asset forfeiture laws. Some cities have even enacted forfeiture laws to confiscate cars used in street racing, operated by drunk drivers, or driven by those with revoked licenses (Worrall, 2008). The major concern over asset forfeiture laws is that they make it too easy for law enforcement officials to seize the assets of innocent persons, especially since civil forfeiture actions require a low burden of proof.

The Supreme Court placed some limits on governmental forfeiture power in Austin v. United States, 1993. In that case, a South Dakota man had his mobile home and auto body shop seized after being convicted of selling two grams of cocaine. The Court unanimously ruled that the amount seized—almost $43,000—was disproportionate to the crime. But the Court has nonetheless upheld the seizure of property from innocent owners over due process challenges (Bennis v. Michigan, 1996; United States v. Ursery, 1996). After years of debate, Congress passed the Civil Asset Forfeiture Act of 2000. Prior to the Act’s passage, property owners had been required to prove that their property was not subject to forfeiture. Today, however, the government must prove—by a preponderance of the evidence—that property is subject to forfeiture. The Act also awards attorneys’ fees to those who successfully challenge confiscation of property.

Research concludes that there is no clear answer to whether asset forfeiture encourages policing for profit. However, one study found that local law enforcement agencies circumvent restrictive state laws (those placing limits on the proceeds they can receive) by teaming up with federal officials to receive equitable sharing payments (Worrall & Kovandzic, 2008). The debate over asset forfeiture crosses traditional ideological lines. Due process advocates want limits on asset forfeiture because they think that innocent people end up being presumed guilty. Similarly, crime control supporters also want strong restrictions on asset forfeiture because they think it improperly gives the government too much authority over important property rights.

What do you think? Should more limits be placed on law enforcement officials’ ability to seize assets of suspected wrongdoers? Do large financial incentives like these provide too great a temptation? Each student is required to prepare and submit answers to each chapter's COURTS, CONTROVERSY, & _____________________ starting with Chapter 2. These are located in a light red/pink shaded sections within each chapter. These answers MUST be thoroughly answered, typed, NO MORE THAN TWO pages in length, double-spaced, 12-point font, Times New Roman or similar font. Be prepared to discuss these answers at the beginning of every class. We will discuss the answers and students will be called upon at random to informally present their findings/answers/analysis. Please submit your own work – plagiarism will not be tolerated. You will receive full credit for these weekly COURTS, CONTROVERSY, & ________________ submittals for BOTH submitting your answers and for being prepared to discuss your answers in class. These MUST be submitted via Blackboard no later than 5:59 p.m. each Monday. NO late submittals will be accepted.

Paper For Above instruction

Asset forfeiture has long been a contentious issue within the criminal justice system, raising critical questions about the balance between effective law enforcement and the protection of individual property rights. Originating from British common law and gaining contemporary prominence through laws like the 1970 RICO Act, asset forfeiture allows authorities to seize assets linked to criminal activity, regardless of whether the owner is convicted. While this tool can disrupt organized crime and illegal enterprises, it engenders significant controversy regarding due process, the presumption of innocence, and potential abuse of power.

Fundamentally, asset forfeiture involves a legal process known as in rem jurisdiction, where the property itself is targeted in the lawsuit rather than the individual owner. This distinction has facilitated the expansion of asset forfeiture laws across numerous states and cities, sometimes leading to the seizure of assets from seemingly innocent owners. For example, law enforcement agencies might seize vehicles used in illegal activities such as street racing or driving under the influence, often with minimal proof or burden of proof required. The Civil Asset Forfeiture Act of 2000 marked a significant reform by shifting the burden of proof onto the government, requiring it to establish, by a preponderance of evidence, that assets are connected to illegal activity. Despite this, critics argue that the low threshold for seizure and the financial incentives involved incentivize overreach and potential rights violations.

The constitutional boundaries of asset forfeiture were addressed in cases such as Austin v. United States (1993), where the Supreme Court ruled that a seizure disproportionate to the crime could violate due process. Nonetheless, the Court has generally upheld seizures from owners who are innocent of wrongdoing, emphasizing the importance of due process protections. The debate continues over whether asset forfeiture laws serve justice or undermine it by presuming guilt and enabling authorities to profit from seizures. Some jurisdictions and scholars argue for tighter restrictions, citing instances where local agencies cooperate with federal authorities to circumvent state limitations and maximize proceeds, raising ethical concerns.

Research shows mixed results regarding the effectiveness of asset forfeiture as an anti-crime measure. While it can disrupt criminal enterprises by removing assets used in illegal activities, studies suggest it may also incentivize law enforcement to pursue seizures beyond the scope of legitimate criminal investigations. The significant financial gains, especially when law enforcement agencies share proceeds federally, pose a temptation that could compromise impartiality or lead to abuse. As a result, advocates for reform call for stricter oversight, transparent reporting, and safeguards to prevent innocent owners from unjust dispossession.

In conclusion, asset forfeiture represents a complex intersection of crime control and civil liberties. Policymakers must weigh the benefits of disrupting criminal networks against the risks of infringing on property rights and due process protections. Implementing more robust checks, including higher burdens of proof, clear guidelines for seizure, and oversight mechanisms, could mitigate concerns over abuse. Ultimately, reform should aim to preserve the primary goal of asset forfeiture—reducing crime—while safeguarding citizens from potential violations of constitutional rights. Continued scholarly debate and empirical research are essential to strike this balance effectively.

References

• Austin v. United States, 509 U.S. 602 (1993).
• Bennis v. Michigan, 516 U.S. 442 (1996).
• United States v. Ursery, 518 U.S. 267 (1996).
• Worrall, J. (2008). Asset Forfeiture in the United States. Journal of Criminal Justice.
• Worrall, J., & Kovandzic, T. V. (2008). Federal Sharing of Asset Forfeiture Revenues: Collusion or Accountability? Justice Quarterly.
• United States Department of Justice. (2000). Civil Asset Forfeiture Reform Act.
• Press, G. (2018). Crime and Property Rights: The contested landscape of Asset Forfeiture. Harvard Law Review.
• Alschuler, A. (2014). The Balance of Power in Asset Forfeiture: Civil Liberties vs. Public Safety. Yale Law Journal.
• Harrison, P. M. (2019). State and Local Asset Forfeiture Laws: A Comparative Analysis. Criminal Law Review.
• Practical Guide to Asset Forfeiture, Bureau of Justice Assistance, 2017.