A Small but Important Victory in the War Against Civil Forfeiture
I've long criticized state and federal civil forfeiture laws. These bounty-hunter type laws permit police to seize your property without ever charging you with a crime, much less convicting you of one.
Based on the flimsiest imaginable evidence (perhaps provided by a "confidential informant"), police can seize your property. They can take your bank accounts, security accounts, your vehicle - even your home - if it's allegedly purchased with, connected to or "facilitates" any one of more than 300 crimes.
That's bad enough. But there's an even more onerous type of forfeiture - one that's brought against your property in connection with a criminal proceeding. Because you must be convicted of a criminal offense in order for the forfeiture to be finalized, it's called "criminal forfeiture."
As with a civil forfeiture, in a criminal forfeiture, it's possible to seize property prior to a conviction. Unless you can prove the property won't ultimately be forfeitable, the property is not available for your use. If that means you can't pay living expenses or hire defense counsel - well, too bad!
In 1989, the Supreme Court ruled that pre-trial restraint of assets that could have been used to pay an attorney did not violate a defendant's constitutional right to an attorney.
However, in a criminal forfeiture, if the property to be forfeited isn't available (perhaps it's stashed in an offshore trust), the court can order the forfeiture of substitute untainted property. Some prosecutors have combined the ability to freeze assets prior to trial with the ability to seize substitute, untainted assets, to seize virtually all of a defendant's assets before a trial began.
If you're the defendant, this can leave you virtually penniless and unable to defend yourself, except using a court-appointed attorney, who may not be familiar with the many nuances and "legal fictions" of forfeiture law.
While the courts don't generally uphold this tactic, it persists, mainly because it puts the government in a much stronger negotiating position. Now, yet another federal court has ruled that the government may not restrain "substitute assets" prior to a criminal conviction and order of forfeiture.
Dana Jarvis and 20 other co-defendants were indicted in a drug trafficking case. Prosecutors tried to restrain real estate Jarvis purchased before the alleged conspiracy ever took place, by filing a notice of lis pendens, which alerts a potential purchaser or lender that the property's title is in question. Since the real estate was clearly not associated with the conspiracy, however, the 10th U.S. Circuit Court of Appeals ruled August 28 that the government couldn't restrain it.
This is a small, but important legal victory in the war against unjust forfeitures. You should have a right to use whatever property you have that's not criminally derived to defend yourself if the government accuses you of a crime. The 10th Circuit's ruling upholds this right, and joins five other Circuits holding that prosecutors may not restrain "substitute assets" prior to a criminal conviction and order of forfeiture.
To learn more about U.S. civil and criminal forfeiture law, and how to make certain your property doesn't come under attack, click here.
I've long criticized state and federal civil forfeiture laws. These bounty-hunter type laws permit police to seize your property without ever charging you with a crime, much less convicting you of one.
Based on the flimsiest imaginable evidence (perhaps provided by a "confidential informant"), police can seize your property. They can take your bank accounts, security accounts, your vehicle - even your home - if it's allegedly purchased with, connected to or "facilitates" any one of more than 300 crimes.
That's bad enough. But there's an even more onerous type of forfeiture - one that's brought against your property in connection with a criminal proceeding. Because you must be convicted of a criminal offense in order for the forfeiture to be finalized, it's called "criminal forfeiture."
As with a civil forfeiture, in a criminal forfeiture, it's possible to seize property prior to a conviction. Unless you can prove the property won't ultimately be forfeitable, the property is not available for your use. If that means you can't pay living expenses or hire defense counsel - well, too bad!
In 1989, the Supreme Court ruled that pre-trial restraint of assets that could have been used to pay an attorney did not violate a defendant's constitutional right to an attorney.
However, in a criminal forfeiture, if the property to be forfeited isn't available (perhaps it's stashed in an offshore trust), the court can order the forfeiture of substitute untainted property. Some prosecutors have combined the ability to freeze assets prior to trial with the ability to seize substitute, untainted assets, to seize virtually all of a defendant's assets before a trial began.
If you're the defendant, this can leave you virtually penniless and unable to defend yourself, except using a court-appointed attorney, who may not be familiar with the many nuances and "legal fictions" of forfeiture law.
While the courts don't generally uphold this tactic, it persists, mainly because it puts the government in a much stronger negotiating position. Now, yet another federal court has ruled that the government may not restrain "substitute assets" prior to a criminal conviction and order of forfeiture.
Dana Jarvis and 20 other co-defendants were indicted in a drug trafficking case. Prosecutors tried to restrain real estate Jarvis purchased before the alleged conspiracy ever took place, by filing a notice of lis pendens, which alerts a potential purchaser or lender that the property's title is in question. Since the real estate was clearly not associated with the conspiracy, however, the 10th U.S. Circuit Court of Appeals ruled August 28 that the government couldn't restrain it.
This is a small, but important legal victory in the war against unjust forfeitures. You should have a right to use whatever property you have that's not criminally derived to defend yourself if the government accuses you of a crime. The 10th Circuit's ruling upholds this right, and joins five other Circuits holding that prosecutors may not restrain "substitute assets" prior to a criminal conviction and order of forfeiture.
To learn more about U.S. civil and criminal forfeiture law, and how to make certain your property doesn't come under attack, click here.
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