When it comes to sentencing or punishing someone who's been convicted of a crime (he's called the "defendant"), forfeitures have become a very popular alternative over the past several years. That's because it acts as a strong deterrent against criminal activity. It does this by taking the profit out crime. When forfeiture is ordered, the defendant has to give up and turn over any property that's connected to his crime. The property is later sold and the government keeps the money.
Most criminal forfeitures take place when a federal crime has been committed. The federal forfeiture law sets out forfeiture may be ordered and what can be taken. A federal rule sets out the process that must be followed so that property isn't taken unfairly. Many states have forfeiture, and they may be very different from the federal system. Be certain to check the laws in your area for the specifics on forfeitures if you're involved in a state criminal prosecution.
Types of Property
Generally, the government may take any property, real or personal, that was either involved in your crime or is traceable to the crime. In other words, it could be something you actually used while committing the crime, such as the get away car in bank robbery. Or, it could be something you got through the criminal activity, like cash from selling illegal drugs, or a car you bought with that cash. Just about anything can be seized, so long as it's connected to the crime.
How It Works
To make sure your property rights are protected, there are several steps and safeguards built into the forfeiture process:
Notice
Before a forfeiture can be ordered, the defendant has to be given notice that the prosecution will ask for a forfeiture. This notice must be contained in the information or indictment that's filed by the prosecution at the beginning of the criminal case. Basically, it's the paper that formally charges you with committing a crime. The notice doesn't have to list specific property. In fact, it may simply state that the prosecution "intends to ask for forfeiture of any property, real or personal, involved in or traceable to" the specific crime you're charged with.
Nexus
The court may order a forfeiture once there's a conviction. At this point, the court has to determine what property, if any, is forfeitable. The judge may base her decision on evidence used during the trial, or she may hold a separate hearing. The crucial question for the judge is: Did the government prove a connection or "nexus" between the crime and the property? The government doesn't have to prove a nexus beyond a reasonable doubt. Rather, it merely has to show that it's more like than not (by a "preponderance of evidence") that the property is connected to the crime.
Preliminary Order
If the judge finds a nexus, she must enter a preliminary order of forfeiture. It must list the exact amount of money or the specific property that the defendant must turn over. At this point, the property may be seized by the US Attorney General or anyone he designates to do so, such as US Marshals or agents of the US Treasury Department.