History
Of Asset Forfeiture:
Much of modern day civil forfeiture law is derived from an early English common law tradition known as deodands. The practice of deodands was the confiscation of an object that caused a human death. These objects were seized, sold and the proceeds were distributed to the church or other charitable organizations on behalf of the deceased.
Forfeiture law in the American colonies evolved from the practice of deodands to the seizure of property following a conviction of treason. This became the precursor to our modern criminal forfeiture laws. Among the earliest laws enacted by the infant nation, Congress enacted Article III, Section 3 of the U.S. Constitution, which speaks to forfeiture: "The Congress shall have power to declare the punishment of treason, but no attainder to treason shall work corruption of blood, or forfeiture except during the life of the person attained."
Admiralty law has also played a major role in the development of our modern day forfeiture statutes. As smuggling and other practices to evade paying duties were prevalent in the newly formed United States, statutes were written to allow for the confiscation of vessels and assets used in these crimes against the revenue. These admiralty laws are the foundation of our civil forfeiture statutes and procedures. Enforcement of these laws fell to the United States Customs Service.
Forfeiture laws have evolved from admiralty laws to the present-day United States Code that provides two fundamental alternatives for assets to be forfeited to the government. Assets can be forfeited under civil forfeiture or criminal forfeiture proceedings. Civil forfeiture actions are in rem, against the property while criminal forfeiture actions are in personam, against the person.
Forfeiture laws remained essentially unchanged until the 1970s when the first federal laws to authorize criminal forfeiture were enacted. These two key laws were the Racketeer Influenced and Corrupt Organization (RICO) Act of 1970, which focused on organized crime syndicates, and the Controlled Substances Act (CSA) of 1970 which facilitated the war on drugs.
Throughout the 1970s, law enforcement agencies primarily used asset forfeiture in an attempt to dismantle traditional organized crime enterprises. As the concern with drug trafficking increased, federal forfeiture programs began concentrating their forfeiture related initiatives on drug related seizures. By 1980, federal investigative agencies with jurisdiction to investigate drug offenses began seizing assets in numbers that exceeded what was contemplated in the 1970s. Thousands of illegally gained assets were seized, the majority of which were processed administratively for civil forfeiture. This shift of investigative priorities had a significant impact on the type of property seized. RICO seizures were generally for high value assets processed under criminal forfeiture procedures while drug related seizures were generally of lower value and processed under civil forfeiture procedures.
In the 1980s Congress successfully identified and defined the new criminal offense of money laundering. Again, law enforcement agencies shifted emphasis and put resources into identifying the illegal monies generated by these organized criminal enterprises. In general, a financial transaction involving these illegal monies which promotes the criminal enterprise, violates the tax laws, disguises ownership, or avoids reporting requirements imposed by law is a money laundering offense. The identification of laundered funds is an effort to take the profit out of crime. Money laundering cases generally involve large amounts of currency and high value assets. The money laundering offense has proven to be successful in debilitating large criminal enterprises. It is an offense of growing importance internationally as financial service institutions have merged and advanced technologically and criminal enterprises have become transnational.
Issues regarding the expenses associated with processing seized and forfeited property (storage, maintenance, disposal, etc.) arose. Over time, these issues precipitated the 1992 enactment of legislation, 31 U.S.C.9703, that shaped the funding, operation and management of the present day Treasury Forfeiture Fund. Prior to this legislation being enacted, only the United States Customs Service and the United States Coast Guard participated in what was then the Customs Forfeiture Fund. Today, both these agencies and the Internal Revenue Service Criminal Investigation, the Bureau of Alcohol, Tobacco and Firearms, and the United States Secret Service participate in the Treasury Forfeiture Fund.
Asset forfeiture continues to evolve as evidenced by the enactment of the Civil Asset Forfeiture Reform Act (CAFRA), public law 106-185 in 2000 and the USA Patriot Act, public law 107-56 in 2001. CAFRA addressed substantive and procedural disputes in civil forfeiture (both administrative and judicial) actions but specifically excluded Treasury Title 19 violations. Provisions of CAFRA impose statutory time limits on certain forfeiture processes, expand the agencies ability to use criminal forfeiture sanctions to dismantle criminal enterprises, and reinforce the due process rights of individuals.
The USA Patriot Act was enacted as a direct result of the events of September 11, 2001. The statute enhances, strengthens and improves domestic border security, intelligence gathering and sharing, surveillance availability, and law enforcement investigative authority to address terrorist threats to the United States. Among many provisions to combat terrorism, the USA Patriot Act amends and enacts asset forfeiture statutes to:
clarify the procedures to be used for the seizure and forfeiture of assets of terrorists;
provide for the seizure and forfeiture of the interbank account of a foreign bank held in U.S. banks where funds were deposited in the foreign bank;
authorize the federal district courts to order convicted criminals to repatriate assets;
provide for the forfeiture of the proceeds and the property used to facilitate an offense against a foreign nation;
provide procedures for a U.S. court to enforce a foreign forfeiture or confiscation judgment and restrain property that will be subject to such a judgment;
provide for forfeiture of large amounts of currency smuggled across a U.S. border;
authorize the forfeiture of Bank Secrecy Act violations under one statute; and,
provide that property used to support terrorist organizations can be forfeited.
Last modified on: Friday, March 01, 2002 5:35:46 PM
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