Criminal forfeiture is one of the federal government’s more far-reaching punishments for certain crimes because it means that the property that was used in the commission of the crime must be forfeited by the owner to the government. For as devastating as its effects can be, it may be surprising to know that criminal forfeiture is a fairly recent development. This is in part because, until the 1970s, asset forfeiture focused primarily on civil forfeiture of the property.
That focus shifted in the early 1970s from in rem (against the thing) civil forfeiture to in personam (against the person) forfeiture of the assets of the person convicted of the crime. The shift was established with the Racketeer Influence and Corrupt Organizations Act (RICO) and the Comprehensive Drug Abuse Prevention and Control Act of 1970. RICO primarily targeted the mafia and the drug law was part of the Nixon Administration’s opening salvo in the drug war.
As implemented in this context, the focus of criminal forfeiture is to punish the owner of the property (in personam) rather than simply seize the offending property itself (in rem). The net of crimes that include criminal forfeiture as a part of their sentence has only grown since the 1970s and now includes money laundering, obscenity statutes, the Patriot Act, and drug trafficking laws. Indeed, almost 50 percent of forfeiture actions in federal courts are criminal forfeitures which shows how popular it has become as a punishment.
Despite its prevalence, however, criminal forfeiture can only be imposed after a defendant has been convicted of a crime that involves criminal forfeiture. Of course, the number of laws that include criminal forfeiture continues to grow such that the requirement of obtaining a conviction is no longer as large of a hurdle, given the sheer number of laws that can be implicated.
What do you do if you find yourself facing federal criminal forfeiture? The first and best line of defense is to find a lawyer who understands both criminal law and forfeiture law as the two are related, but not the same. This is because the government is required in the indictment to set forth that they are intending to seek forfeiture as part of the ultimate sentence. Having counsel with you at the ground floor means that they can make the necessary arguments to try to short circuit the government’s attempt to even get to the property.
Counsel can assist in possibly obtaining a carve-out of funds necessary for you to maintain your home and family as well as to fund your defense (indeed, a right enshrined in the Sixth Amendment). Counsel can also represent you in any preliminary hearings in which the court will attempt to find a nexus between the property and the alleged wrongdoing. Often times, defendants will allow this hearing to pass without argument, thus giving up the assets without a fight and then, later, spend untold resources attempting to regain those assets.
If you are facing criminal forfeiture, the attorneys at Weisberg Kainen Mark can help guide you through the process since they are well-versed in both criminal and forfeiture law. Don’t lose property that you don’t have to – contact us today to get started.