Criminal Law

Forfeitures in Criminal Sentencing

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.

"Ancillary" Hearing

Once a preliminary order has been made, the court must hold an "ancillary" or secondary hearing. Here, the judge must determine:

  • Property ownership. At this point, the defendant may present evidence that he doesn't own the property or that the property wasn't connected to the crime. For example, he may have accounting records that show that the property in question was bought with funds that he earned legally
  • Third party property claims. A third party may be a bank, parent or spouse, for instance, and they should receive notice of the forfeiture after the preliminary order is made. This is usually done by running a legal notice in the local newspaper or on the internet. If they have a claim to the property, they must file a "petition" within 30 days after the preliminary order asking that court determine if they own the property. If the judge finds that the third party owns it, the property can't be forfeited. A good example is when a parent claims to own the home from where his son was selling drugs.

Ancillary hearings have to be held only when the property to be forfeited is real or personal property. In other words, no ancillary hearing is required if government is seeking the forfeiture of money.

Final Order

After the ancillary hearing, the judge must enter a final order of forfeiture. Here, he changes or "amends" the preliminary order to protect any third party property rights. If no third-party petition was filed, a final order may be made immediately. Then the forfeited property is sold.

Where's the Money Go?

The sale proceeds from forfeited real and personal property, or the cash turned over by the defendant, are usually used for law enforcement projects, such as buying new equipment. Some of the money may go into the federal Crime Victims Fund, which is run by the Office for Victims of Crime. Most states have similar funds. These funds provide things like medical services and emergency shelter for victims of crimes.

Questions for Your Attorney

  • I didn't see the notice of forfeiture and I filed a petition claiming ownership of the car my son was driving when he was arrested about 10 days late. The court won't consider my petition and they're taking my car. What can I do? 
  • Even if the prosecution can prove that I bought a car with money I made from selling illegal goods, they can't seize it if I gave it to my wife and it's in her name, right?
  • About one month ago the court agreed with my third-party petition, but the police haven't returned the property to me. How long can they hold it? How do I get it back?
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