Property that can be seized includes real property such as a house or motel, cars, money, jewellery, boats, and almost anything that [15] is suspected of being related to the manufacture, sale and transportation of illicit controlled substances, such as: First, our standard, our burden of proof, is less than it is beyond a reasonable doubt. and it is a civil action rather than a criminal action, so that because the Commonwealth could not discharge the burden of irreproachability beyond a reasonable doubt in a criminal matter, that does not preclude us from continuing to act against the property that is our named defendant. With the crushing weight of evidence, yes, we can continue to act against this. Fair sharing: Under a federal program called Fair Sharing, local and state law enforcement agencies can circumvent state laws that limit civil forfeiture. By working with a federal agency, they can lose property under federal law and take over up to 80% of the property`s value. Direct law enforcement participation in confiscation promotes greed for profit, not the pursuit of justice. Minnesota`s new law starting in 2014, like Nevada and Montana`s, requires a conviction by a criminal court before property forfeiture by a civil court. The new law also changed the burden of proof for a suspect whose property was seized as part of a drug investigation. The old law required a suspect to prove that his or her property was not related to the drug found during the investigation. For example, the suspect would have had to prove that the television in his bedroom had nothing to do with marijuana, in the pocket of a coat hanging in his closet.
The new law requires the government to prove the link between confiscated property and drugs. 26 These are significant improvements, but, as in Nevada and Montana, North Star state leaders could significantly increase landowner protection — and significantly increase the state`s score — by lowering the financial incentive from 90% to zero. Since the incentive for profit remains, Minnesota`s reforms have only raised the grade from D to D+. In theory, these “innocent owners” claims offer protection against unwarranted civil forfeiture. In practice, however, most provisions for innocent owners discriminate against owners, making it easy for the government to retain confiscated property. If passed, the law would, inter alia, oblige the Ministry of Justice to pay confiscated funds into the General Fund of the Ministry of Finance, thereby reducing the financial incentive for seizure; require the government to prove, with clear and convincing evidence, that property can be forfeited; require the government to prove that a person alleging that an innocent owner knew of the criminal use of his property; and advising indigent landlords in civil forfeiture cases. 44 Law enforcement authorities and advocates of civil asset forfeiture argue that it is an essential tool that helps to mitigate organised crime, prevent new offences and weaken criminal cartels. Critics of civil forfeiture argue that it deprives owners of their basic due process rights and that law enforcement`s financial involvement in civil forfeiture can distort their priorities and promote the pursuit of property rather than the administration of justice. Forfeiture has been used for purposes other than the prevention of illegal drug-related activities, such as attempts in New York to prevent drunk driving. Weapons are kept in the custody of the law enforcement authority until the facts against him in court have been decided; or the weapons must be returned to their owner if no criminal complaint is filed within the legally established time limit. In practice, some law enforcement agencies in these states are known to sell or destroy seized firearms without compensating the owner once the legal issue that led to the initial seizure has been resolved.
[ref. needed] Federal prosecutors also prefer civil forfeiture to criminal prosecution. U.S. Assistant Attorney Craig Gaumer, who called civil forfeiture a “secret weapon of the prosecutor,” wrote, “Civil forfeiture laws facilitate the seizure of potentially confiscable personal property than their counterparts in criminal forfeiture.” Among their advantages, he noted that “civil forfeiture cases do not require the criminal conviction of the owner (or any other person) as a condition of forfeiture.” 14 In recent years, many states have enacted laws to limit the use of civil forfeiture, and some prohibit it altogether unless the owner has already been criminally convicted of the crime justifying the seizure. However, the fair sharing program provided a loophole that allowed state and local law enforcement agencies to share liquidated proceeds from civil forfeiture cases that they could hand over to federal law enforcement. To fill this gap in 2015, Attorney General Holder unilaterally barred federal law enforcement agencies from working with state and local police to handle forfeiture cases where local and state laws prohibit it without a warrant or criminal charge. Attorney General Holder also limited the seizure of bank accounts to cases where serious illegal transactions have been documented. Civil forfeiture has been the subject of considerable controversy. Civil forfeiture begins when the government suspects that a property is related to illegal drug activity and files a civil lawsuit:[22] As shown in Figure 8, the innocent property provisions in federal and 35 state law place the burden of proof on the owners, meaning that owners must prove that they had nothing to do with the alleged crime. Essentially, most civil forfeiture laws assume that people are associated with criminal activity affecting their property and force them to prove otherwise in order to recover it. This is exactly the opposite of what happens in criminal trials, where the accused is presumed innocent until proven guilty by the government. It also often implies a practical impossibility, as it requires people to prove a negative – that they knew nothing or did not accept the illegal use of their property.