Asset forfeiture is a term used to describe the confiscation of assets In financial accounting, assets are economic resources. Anything tangible or intangible that is capable of being owned or controlled to produce value and that is held to have positive economic value is considered an asset. Simply stated, assets represent ownership of value that can be converted into cash . The balance sheet of a firm records the, by the state A state is a set of institutions that possess the authority to make the rules that govern the people in one or more societies, having internal and external sovereignty over a definite territory. In Max Weber's influential definition, it is that organization that has a "monopoly on the legitimate use of physical force within a given territory&, which are either (a) the proceeds of crime Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction. Individual human societies may each define crime and crimes differently. While every crime violates the law, not every violation of the law counts as a crime; for example: breaches of contract and of other civil law may rank as " or (b) the instrumentalities of crime, and more recently, terrorism. Instrumentalities of crime are property that was used to facilitate crime Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction. Individual human societies may each define crime and crimes differently. While every crime violates the law, not every violation of the law counts as a crime; for example: breaches of contract and of other civil law may rank as ", for example cars used to transport illegal narcotics. The terminology used in different jurisdictions varies. Some jurisdictions use the term "confiscation" instead of forfeiture. In recent years there has been a growing trend for countries to introduce civil forfeiture. Such proceedings may be brought in the USA ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language, Australia For at least 40,000 years before European settlement in the late 18th century, Australia was inhabited by indigenous Australians, who belonged to one or more of the roughly 250 language groups. After sporadic visits by fishermen from the immediate north and discovery by Dutch explorers in 1606, Australia's eastern half was claimed by Britain in 177, the UK The United Kingdom of Great Britain and Northern Ireland[note 7] is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of the island of Ireland, and many small islands. Northern Ireland is the only part of the UK with a land, Georgia Georgia (Georgian: საქართველო, IPA: [sɑkʰɑrtʰvɛlɔ] ; English pronunciation: /ˈdʒɔrdʒə/ ( listen)) is a sovereign state in the Caucasus region of Eurasia. Situated at the juncture of Eastern Europe and Western Asia, it is bounded to the west by the Black Sea, to the north by Russia, to the south by Turkey and Armenia,, Ireland Ireland (pronounced [ˈaɾlənd],; Irish: Éire, pronounced [ˈeːɾʲə] ( listen); Ulster Scots: Airlann) is the third-largest island in Europe and the twentieth-largest island in the world. It lies to the northwest of continental Europe and is surrounded by hundreds of islands and islets. To the east of Ireland is Great Britain, separated from, Italy Italy (pronounced /ˈɪtəli/ ; Italian: Italia [iˈtaːlja]), officially the Italian Republic (Italian: Repubblica italiana), is a country located partly on the European Continent and partly on the Italian Peninsula in Southern Europe and on the two largest islands in the Mediterranean Sea, Sicily and Sardinia. Italy shares its northern, Alpine, South Africa Coordinates: 29°02′46″S 25°03′47″E / 29.046°S 25.063°E The Republic of South Africa is a country located at the southern tip of Africa, with a 2,798 kilometres coastline on the Atlantic and Indian Oceans. To the north lie Namibia, Botswana and Zimbabwe; to the east are Mozambique and Swaziland; while Lesotho is an independent, various Canadian The land occupied by Canada was inhabited for millennia by various groups of Aboriginal peoples. Beginning in the late 15th century, British and French expeditions explored, and later settled, along the Atlantic coast. France ceded nearly all of its colonies in North America in 1763 after the Seven Years' War. In 1867, with the union of three Provinces and Antigua Antigua is an island in the West Indies, in the Leeward Islands in the Caribbean region, the main island of the country of Antigua and Barbuda. Antigua means "ancient" in Spanish and was named by Christopher Columbus after an icon in Seville Cathedral, Santa Maria de la Antigua—St. Mary the Ancient. It is also known as Wadadli, from.
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Motivation
Proponents of asset forfeiture suggest that it is a necessary tool to prevent drug trafficking The illegal drug trade is a global black market, competing with legal drug trade, dedicated to cultivation, manufacture, distribution and sale of those substances which are subject to drug prohibition laws. Most jurisdictions prohibit trade, except under license, of many types of drugs by drug prohibition laws or other crimes but such claims cannot be supported by facts. For example, when 54 Balfour Street (see http://www.simonprophet.com) was seized by the state in 2001 as having been an instrumentality of methamphetamine drug crime then that specific drug crime escalated in South Africa by a staggering 7 500% within 4 years. There are no statistics anywhere in the world that indicate that criminal or civil asset forfeiture has ever reduced drug crimes. Former United States ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language President George H. W. Bush George Herbert Walker Bush was the 41st President of the United States (1989–1993). He was also Ronald Reagan's Vice President (1981–1989), a congressman, an ambassador, and Director of Central Intelligence said, "[Asset forfeiture laws allow [the government] to take the ill-gotten gains of drug kingpins A crime boss or boss is a person in charge of a criminal organization. A boss typically has unquestioned command over his subordinates, is greatly feared by his subordinates for his ruthlessness and willingness to take lives in order to exert his influence, and profits come from the criminal endeavors his organization engages in and use them to put more cops on the streets." More than 3 decades of drug laws have failed to curb illegal drugs and asset forfeiture has also shown itself to have failed in all countries where it has been implemented.[citation needed]
The trend towards civil forfeiture has in part been prompted by the nature of organized crime. Organized crime heads use their resources to keep themselves distant from the crimes that they control and to mask the criminal origins of their assets. For this reason it has become extremely difficult to carry out successful criminal investigations leading to the prosecution and conviction of such individuals.
In particular countries
United States
There are two types of forfeiture cases, criminal and civil. Almost all forfeiture cases today are civil.[citation needed] In civil forfeiture cases, the US Government sues the item of property, not the person, an instance of jurisdiction in rem Jurisdiction in rem is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have "in personam jurisdiction". Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal; the possessor (and presumptive owner) is effectively a third party claimant A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions, for the party who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an – their claim of ownership is in question. For example, in USA v. $124,700 (2006), the defendant was the cash itself, not the person from whose car the cash was seized.
Before the Civil Asset Forfeiture Reform Act was enacted in 2000, the government only had to establish probable cause In United States criminal law, probable cause is the standard by which a police officer has the authority to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest. It is also used to refer to the standard to which a grand jury believes that a crime has been committed. This term comes from the Fourth Amendment of that the property was subject to forfeiture; the owner had to prove on a "preponderance of the evidence The law of evidence governs the use of testimony and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law)" that it was not. The new law holds the government to the "preponderance of evidence" standard and shifts the burden of proof to the federal government instead of the property owner.[1] The property owner still need not be found guilty of any crime. In contrast, criminal forfeiture is usually carried out in a sentence following a conviction In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime and is a punitive act against the offender. Since the government can choose the type of case, a civil case is almost always chosen. The costs of such cases is high for the owner, usually totaling around $10,000 and can take up to three years.
The United States Marshals Service The United States Marshals Service is a United States federal law enforcement agency within the United States Department of Justice (see 28 U.S.C. § 561) and is the oldest federal law enforcement agency in the United States is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. It currently manages around $1 billion worth of seized property. The United States Treasury Department is responsible for managing and disposing of properties seized by Treasury agencies. The goal of both programs is to maximize the net return from seized property by selling at auctions An auction is a process of buying and selling goods or services by offering them up for bid, taking bids, and then selling the item to the highest bidder. In economic theory, an auction may refer to any mechanism or set of trading rules for exchange and to the private sector ,and then using the property and proceeds for law enforcement purposes.
One controversial form of asset forfeiture is roadside forfeiture during a vehicle stop, usually enforced by highway police. Sen. John Whitmire, D-Houston, chair of the Senate Criminal Justice Committee is investigating the Tenaha, Texas Police seizures scandal.
United Kingdom
In the United Kingdom asset forfeiture proceedings are initiated under the Proceeds of Crime Act 2002 The Proceeds of Crime Act 2002 (POCA) is an Act of the Parliament of the United Kingdom which provides for civil recovery of the proceeds from crime and created the Assets Recovery Agency. There are three types:
- confiscation proceedings following a criminal conviction;
- cash forfeiture proceedings, which take place (in England and Wales) in the Magistrates Court A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions. A magistrates' court is presided over by a tribunal consisting of two or more justices of the peace or by a district judge (formerly known as a stipendiary magistrate), and with a right of appeal to the Crown Court The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales. It is the higher court of first instance in criminal cases; however, for some purposes the Crown Court is hierarchically subordinate to the High Court and its Divisional, having been brought by either the police or Customs.
- civil recovery In United Kingdom law, civil recovery (a) enables the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property (including intellectual property) obtained through unlawful conduct, and (b) enables cash which is, or represents, property obtained through unlawful proceedings, which under the 2002 Act as originally passed were only capable of being brought, in England, Wales and Northern Ireland, by the Assets Recovery Agency The Assets Recovery Agency was a non-ministerial government department in the United Kingdom. It was established under the Proceeds of Crime Act 2002 (POCA) to reduce crime by confiscating the proceeds of any crime. It was granted a new power of civil recovery through the High Court, and could also take over the powers of the HM Revenue and and, in Scotland by the Crown Office, but, following amendment by the Serious Crime Act 2007 The Serious Crime Act 2007 is an Act of the Parliament of the United Kingdom that makes several radical changes to English criminal law. In particular, it creates a new scheme of serious crime prevention orders to frustrate crime in England and Wales and in Northern Ireland, replaces the common law crime of incitement with a statutory offence of, are now capable of being brought by the Serious Organized Crime Agency The Serious Organised Crime Agency is a non-departmental public body of the United Kingdom government and a national law enforcement agency in the United Kingdom, the Director of Public Prosecutions for England and Wales, the Director of the Serious Fraud Office, the Director of Public Prosecutions for Northern Ireland and, in Scotland, by the Crown Office Serious Crime Act 2007 The Serious Crime Act 2007 is an Act of the Parliament of the United Kingdom that makes several radical changes to English criminal law. In particular, it creates a new scheme of serious crime prevention orders to frustrate crime in England and Wales and in Northern Ireland, replaces the common law crime of incitement with a statutory offence of, section 74</ref>.
Neither cash proceedings nor proceedings for a civil recovery order require a prior criminal conviction.
In Scotland, confiscation proceedings are initiated by the procurator fiscal A procurator fiscal is a public prosecutor in Scotland. They investigate all sudden and suspicious deaths in Scotland (similar to a coroner in other legal systems), conduct Fatal Accident Inquiries (a form of inquest unique to the Scottish legal system) and handle criminal complaints against the police (administrative complaints are handled by the or Lord Advocate Her Majesty's Advocate , known as the Lord Advocate (Scottish Gaelic: Morair Tagraidh), is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament. He or she is the chief public prosecutor for Scotland and all prosecutions on through the Sheriff Court Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom or High Court of Justiciary The High Court of Justiciary is the supreme criminal court of Scotland. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of the Scottish Government The Scottish Government is the executive arm of the devolved government of Scotland. It was established in 1999 as the Scottish Executive, from the extant Scottish Office, and the term Scottish Executive (or Administration) remains its legal name under the Scotland Act 1998. Following the 2007 Scottish Parliament election, the term Executive was in the Sheriff court, with appeals to the Court of Session The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal.
Ireland
Ireland was one of the first countries to introduce asset forfeiture. The Criminal Assets Bureau initiates civil forfeiture proceedings and the Director of Public Prosecutions initiates confiscation proceedings. The Bureau was set up under the Criminal Assets Bureau Act 1996, partly in response to the murder of the investigative journalist Veronica Guerin Veronica Guerin was an Irish crime reporter who was murdered on 26 June 1996 by drug lords, an event, which alongside the murder of Detective Garda Jerry McCabe three weeks earlier, helped establish the Criminal Assets Bureau, who had exposed many of the activities of the Irish criminal underworld.
Notable forfeitures
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After the Madoff investment scandal The Madoff investment scandal is the Ponzi scheme that former NASDAQ chairman Bernard Madoff confessed to in 2008. He founded the Wall Street firm Bernard L. Madoff Investment Securities LLC in 1960, and was its chairman until his arrest. Alerted by his sons, federal authorities arrested Madoff on December 11, 2008. On March 12, 2009, Madoff pled surfaced, Bernard Madoff was ordered to forfeit $170 billion. His wife Ruth, although not charged, agreed to forfeit about $80 million in assets.[2]
See also
- Eminent domain Eminent domain , compulsory purchase (United Kingdom, New Zealand, Ireland), resumption/compulsory acquisition (Australia) or expropriation (South Africa and Canada) is the inherent power of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the
- Forfeiture Endangers American Rights Forfeiture Endangers American Rights is an organization in the United States dedicated to stopping abuse of asset forfeiture, the practice whereby governments seize tangible and financial assets alleged to have been used in the commission of certain crimes. It is a 501(c)(3) charitable organization located in Mill Valley, California - U.S. anti-forfeiture activist organization
- IRS Criminal Investigation Division Internal Revenue Service, Criminal Investigation investigates potential criminal violations of the U.S. Internal Revenue Code and related financial crimes in a manner intended to foster confidence in the tax system and compliance with the law. While other federal agencies also have investigative jurisdiction for money laundering and some bank
- USA v. $124,700 August 18, 2006 case from the Eighth Circuit Court on civil forfeiture of $124,700
- United States Marshals Service The United States Marshals Service is a United States federal law enforcement agency within the United States Department of Justice (see 28 U.S.C. § 561) and is the oldest federal law enforcement agency in the United States
References
- ^ Dunn, Kyla, Reining in Forfeiture: Common Sense Reform in the War on Drugs, http://www.pbs.org/wgbh/pages/frontline/shows/drugs/special/forfeiture.html, retrieved 2010-02-25
- ^ http://www.cbsnews.com/stories/2009/06/28/business/main5119673.shtml
Further reading
- Levy, Leonard Williams Leonard W. Levy was the Andrew W. Mellon All-Claremont Professor of Humanities and Chairman of the Graduate Faculty of History at Claremont Graduate School, California. He was born in Toronto, Ontario, Canada (1996). A License to Steal: The Forfeiture of Property. Chapel Hill: University of North Carolina Press. ISBN The International Standard Book Number is a unique numeric commercial book identifier based upon the 9-digit Standard Book Numbering (SBN) code created by Gordon Foster, now Emeritus Professor of Statistics at Trinity College, Dublin, for the booksellers and stationers W.H. Smith and others in 1966 0-8078-2242-6.
External links
| The neutrality of this section is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (November 2009) |
- How asset forfeiture are being misused in America
- No one may be deprived of property
- Introduction to forfeiture laws
- List of offenses that trigger federal forfeiture More
- Judge David Demers - Search & Seizure Outline
- AssetForfeitureWatch.com - news and analysis for law enforcement
- SA's Constitutional Safeguards are in Tatters
- Video: Policing for Profit
Categories: Property law Categories: Civil law | Property | Common law | Criminal law Categories: Public law | Common law | Law by issue | Criminal justice | Asset forfeiture
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Wed, 25 Aug 2010 20:35:40 GMT+00:00
Gazette Newspapers I was dealing with primary asset forfeiture , which was all the things gained illegally. I also worked on analyzing trends for the Crime Analysis Unit. ...
Cochise
Fri, 09 Jul 2010 22:44:14 GM
Asset Forfeiture. , Civil Procedure, Criminal Law & Procedure, Property Law & Real Estate Gomez v. Village of Pinecrest In forfeiture proceeding against a property owner, claiming that the property was being used for criminal activity by ...
