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 (, 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 -tin 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 – ruled that the amount $43,000—was disproportionate to the crime. But the Court has nonetheless upheld the seizure of property from innocent owners over due process challenges ( v. Michigan,1996; United States v. , 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 a preponderance of the 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. How-ever, 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 ( & , 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.
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