Asset Forfeiture

Excerpted from Asset Forfeiture, Second Edition

By Dee R. Edgeworth

1. Summary Forfeiture
   The benefits of summary forfeiture include that it functions by operation of law and does not require formal legal process to meet due process concerns.
   
   Its weakness is that it is restricted to contraband per se property so it has limited use.

2. Administrative Forfeiture
   Administrative forfeitures carry the advantages common to civil in rem forfeiture that they permit the seizing agency to obtain possession of the property and to retain custody during the pendency of the action, nor is there a criminal conviction requirement. The main benefit of this forfeiture is that it conserves judicial resources and provides quick resolution for uncontested matters.
   
   One potential drawback is that since the forfeiture is non-judicial, completed by an administrative agency pursuant to its executive powers, no court orders are issued and recognition of legal title may be questioned by entities unfamiliar with the government’s administrative forfeiture authority.

3. Criminal Forfeiture
   Some of the advantages of criminal forfeiture include the availability of a money judgment that is jointly and severally liable on all criminal defendants, access to substitute assets when the original forfeitable property cannot be located or is beyond the jurisdiction of the court, and the resolution of the criminal case and the forfeiture action in one criminal forum.
   
   Weaknesses of the criminal forfeiture process include the criminal conviction requirement. Unless the defendant is convicted there can be no forfeiture.

4. Civil In Rem Forfeiture
   Advantages of civil in rem forfeiture include immediate possession of the property.
   
   One major weakness of civil in rem forfeiture is the lack of substitute assets. Unless the actual property subject to forfeiture is located there can be no forfeiture.

5. Civil In Personam Forfeiture
   These are unique because they blend the advantages of the criminal and civil forfeiture processes and avoid most of the pitfalls. They provide for the forfeiture of substitute assets and joint and several liability of the parties on the forfeiture judgment without the criminal conviction requirement. Since they are civil actions they have the lower civil burden of proof and allow civil discovery. They also permit the forfeiture of assets of corrupt organizations on the enterprise theory in addition to the contraband, proceeds and facilitation theories.
   
   Restraining orders and seizure warrants may be required to seize and protect the forfeitable property and may be unavailable against substitute assets. A separate in rem action may be necessary to determine the rights of third party claimants.

Sponsoring Entity:

Section of Criminal Justice