Reforming Property Forfeiture Laws to Protect Citizens' Rights PDF Download
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Author: Donald J. Kochan
Publisher:
ISBN:
Category :
Languages : en
Pages : 44
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Book Description
The Framers of the United States Constitution understood that freedom depends upon the vigorous protection of private property rights and that this protection was therefore the most sacred obligation of government. However, despite Fifth and Fourteenth Amendment guarantees, recent years have witnessed a massive expansion of a legal practice known as quot;asset forfeiture.quot; Hundreds of asset forfeiture laws give state and federal law enforcement agents the power to seize property even without proof of the owners' guilt in a criminal trial because, in many cases, the government considers the property itself to be the criminal. This paper examines the practice of asset forfeiture in Michigan and recommends reforms to help authorities prosecute criminals while still protecting the property rights of innocent citizens and preserving the freedom and due process rights of everyone. Michigan and federal policy makers should: remove incentives for law enforcement agencies to employ asset forfeiture; end federal quot;adoptionquot; of state forfeiture cases; shift the burden of proof from property owners to government; establish nexus and proportionality requirements for forfeiture; eliminate legal hurdles to citizens' ability to challenge forfeiture; require law enforcement agents to publicly justify forfeiture proceedings; enact protections against forfeiture for innocent owners of property; give third-party creditors the chance to recover seized property; and ensure that asset forfeiture reforms do not include an expanded definition of criminal behavior.
Author: Donald J. Kochan
Publisher:
ISBN:
Category :
Languages : en
Pages : 44
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Book Description
The Framers of the United States Constitution understood that freedom depends upon the vigorous protection of private property rights and that this protection was therefore the most sacred obligation of government. However, despite Fifth and Fourteenth Amendment guarantees, recent years have witnessed a massive expansion of a legal practice known as quot;asset forfeiture.quot; Hundreds of asset forfeiture laws give state and federal law enforcement agents the power to seize property even without proof of the owners' guilt in a criminal trial because, in many cases, the government considers the property itself to be the criminal. This paper examines the practice of asset forfeiture in Michigan and recommends reforms to help authorities prosecute criminals while still protecting the property rights of innocent citizens and preserving the freedom and due process rights of everyone. Michigan and federal policy makers should: remove incentives for law enforcement agencies to employ asset forfeiture; end federal quot;adoptionquot; of state forfeiture cases; shift the burden of proof from property owners to government; establish nexus and proportionality requirements for forfeiture; eliminate legal hurdles to citizens' ability to challenge forfeiture; require law enforcement agents to publicly justify forfeiture proceedings; enact protections against forfeiture for innocent owners of property; give third-party creditors the chance to recover seized property; and ensure that asset forfeiture reforms do not include an expanded definition of criminal behavior.
Author: Donald J. Kochan
Publisher:
ISBN: 9781890624057
Category : Forfeiture
Languages : en
Pages : 39
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Book Description
Author: Henry J. Hyde
Publisher: Cato Institute
ISBN: 1935308963
Category : Political Science
Languages : en
Pages : 119
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Book Description
Most people don't know it, but the government can take people's homes, cars, and money without charging them with a crime -- and the burden of recovery is on the owners! In Forfeiting Our Property Rights, Congressman Henry Hyde of Illinois examines the abuse inherent in civil forfeiture, the law that lets government take property that is merely suspected of having "facilitated" crime. Hyde shows how forfeiture law has cost innocent people their property and at least one citizen, Donald Scott, his life. In fact, over a quarter of a million Americans have had their property seized through forfeiture law. Congressman Hyde proposes an overhaul of the law to protect innocent property owners, including a shift in the burden of proof from citizen to the government and a raising of the standard the government must satisfy to seize property in the first place. This alarm on behalf of our threatened civil liberties and rights couldn't be more timely.
Author: Congressional Research Service
Publisher: CreateSpace
ISBN: 9781508433422
Category : Business & Economics
Languages : en
Pages : 34
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Book Description
From its beginning in the First Congress, Congress has viewed asset forfeiture as an integral part of federal crime fighting: It takes contraband off the streets, ensures that “crime doesn't pay,” and deprives criminals of their “tools of the trade.” In short, asset forfeiture is the process of confiscating money or property from a person because it is illegal to possess, it constitutes proceeds of a crime, or it was used to facilitate a crime. Asset forfeiture became a major tool in combating organized crime, drug trafficking, and other serious federal offenses throughout the mid-to-late 20th century and continues to play a major role in federal prosecutions. In recent years, however, there has been growing opposition to the expanding scope of asset forfeiture, both civil and criminal, with objections primarily coming in two forms: procedural and structural. The procedural objections are based on the idea that the current rules pertaining to asset forfeiture heavily favor the government. With civil asset forfeiture, the property owner need not be convicted nor even prosecuted for a crime before the government can confiscate his or her property. Unlike criminal prosecutions, the property owner is not constitutionally entitled to an attorney or many other safeguards found in the Bill of Rights. The burden of proof is set at the preponderance-of-the-evidence standard, lower than the traditional criminal standard of beyond a reasonable doubt. If the property owner is claiming innocence, he has the burden of proving either that he had no knowledge of the criminal activity or that he tried to stop the activity if he did know about it. Structural objections pertain to how property and money are allocated once forfeited. The Department of Justice (DOJ) is permitted by law to keep most of the forfeited assets, creating what some view as a profit motive. Recently, DOJ stopped its practice of “adoptive forfeitures,” which allowed it to adopt property seized by state and local law enforcement as part of its “equitable sharing” program. Some saw this as a way of bypassing more stringent state forfeiture laws. Asset forfeiture faced comparable criticism several decades ago, leading Congress to enact the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the first major overhaul in federal forfeiture law in 200 years. While this law brought about significant reform to federal forfeiture policy and procedures, some have questioned whether CAFRA went far enough to rein in what they characterize as overzealous police forfeiture tactics. Recent concerns about the current legal framework are evidenced in new reports of possible police misuse of federal forfeiture laws. Contemporaneously, reform legislation has been introduced in the 113th and 114th Congresses. With these proposals in mind, this report will provide an overview of selected legal issues and reforms surrounding asset forfeiture, including the burden-of-proof standard and innocent-owner defense in civil asset forfeiture cases, access to counsel in both civil and criminal forfeiture cases (including a discussion of the 2014 Supreme Court asset forfeiture decision Kaley v. United States), allocation of profits from confiscated assets, and DOJ's equitable sharing program.
Author: Simon N. M. Young
Publisher: Edward Elgar Publishing
ISBN: 1848446217
Category : Law
Languages : en
Pages : 393
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Book Description
. . . this work is an important contribution to the global discourse on pursuing property, money or resources linked to crime. Michelle Gallant, Journal of Business Law Informed and informative, Civil Forfeiture of Criminal Property is a seminal work of impressive scholarship and strongly recommended for professional, academic, and governmental judicial studies collections in general, and criminal justice reference collections in particular. Library Bookwatch, Midwest Book Review This book is interesting because there is a dearth of writing on the subject. It must be read for that reason. Sally Ramage, The Criminal Lawyer Once called the monster that ate jurisprudence , civil forfeiture is now an established weapon in the fight against organized crime, terrorism, drug trafficking and corruption. This fine collection of essays covering civil forfeiture regimes in ten diverse jurisdictions, written by leading practitioners, provides a comprehensive and detailed overview of the jurisprudential, legal, political and practical dimensions of the new generation of these powerful and controversial laws. I commend this book to criminal, civil, comparative and human rights lawyers who have an interest in how serious and profit-motivated crime, and responses to it, develop over time and in different legal cultures. Arie Freiberg, Monash University, Australia In this book, which is the first of its kind, leading experts examine the civil and criminal forfeiture systems in Australia, Canada, China, Ireland, South Africa, the United Kingdom and the United States. In the fight against organized crime and international money laundering, there is a global trend for countries to enact forfeiture and confiscation laws that are applied through the civil process rather than the traditional criminal justice system. The authors gathered here analyze the appeal these civil forfeiture laws have for governments for their potential to disrupt criminal organizations and for their quantifiable benefits to the state. But without the usual safeguards of the criminal process, civil forfeiture laws are controversial, attracting constitutional challenges, particularly on human rights grounds. This book will be of great interest to policy-makers in government, and law enforcement agencies who are thinking of reforming their own laws, as well as to law reform agencies or select parliamentary committees where the issue of reform is topical. It will also appeal to students in criminal law, criminology and human rights.
Author: United States. Congress. House. Committee on the Judiciary. Subcommittee on Crime
Publisher:
ISBN:
Category : Forfeiture
Languages : en
Pages : 278
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Book Description
Author: Terrorism Homela Subcommittee on Crime
Publisher: Createspace Independent Publishing Platform
ISBN: 9781512147131
Category :
Languages : en
Pages : 110
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Book Description
The Government is seizing billions of dollars of cash and property from Americans, often without charging them with a crime. With origins in medieval law, civil asset forfeiture is premised on the legal fiction that inanimate objects bear moral culpability when used for wrongdoing. The practice regained prominence as a weapon in the modern drug war as law enforcement sought to disrupt criminal organizations by seizing the cash that sustains them. The practice, however, has proven a far greater affront to civil rights than it has been as a weapon against crime. While forfeitures have received increased attention in recent months, they are still poorly understood. After property is seized, its owner will usually have the option of challenging the seizure judicially with the Federal court system or administratively with the seizing agency itself. Seizures that are not challenged within 30 days of receiving notice are automatically forfeited. A majority of Federal civil forfeitures are never contested largely because of the high cost of retaining counsel, which often exceeds the value of the property itself.
Author: Jerald Diaz
Publisher:
ISBN: 9781634833110
Category : LAW
Languages : en
Pages : 213
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Book Description
Forfeiture has long been an effective law enforcement tool. Congress and state legislatures have authorized its use for over 200 years. Every year, it redirects property worth billions of dollars from criminal to lawful uses. Forfeiture law has always been somewhat unique. By the close of the 20th century, however, legislative bodies, commentators, and the courts had begun to examine its eccentricities in greater detail because under some circumstances it could be not only harsh but unfair. The Civil Asset Forfeiture Reform Act was a product of that reexamination. This book is an overview of federal forfeiture law. It sketches the origins and general attributes of forfeiture, describes the distribution of the hundreds of millions of dollars it generates, and identifies some of the constitutional issues it raises. Furthermore, the book provides an overview of selected legal issues and reforms surrounding asset forfeiture, including the burden-of-proof standard and innocent-owner defense in civil asset forfeiture cases, access to counsel in both civil and criminal forfeiture cases, allocation of profits from confiscated assets, and DOJ's equitable sharing program.
Author: United States. Congress. House. Committee on the Judiciary
Publisher:
ISBN:
Category : Acquisition of property
Languages : en
Pages : 388
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Author: United States. Congress. House. Committee on the Judiciary. Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
Publisher:
ISBN:
Category : Criminal law
Languages : en
Pages : 112
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Book Description
