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If law enforcement has seized your property, understanding the difference between Civil Asset Forfeiture and Criminal Forfeiture, is important. The differences are great as are some of the similarities. As a Miami Asset Forfeiture Attorney, I will explain both in this article.
Civil Asset Forfeiture vs. Criminal Forfeiture
Criminal cases are brought exclusively by the Government to prosecute violations of the criminal laws. Trafficking Cocaine, Money Laundering, and Grand Theft are all examples of criminal offenses. Any case where a criminal record and jail/prison time are at stake is a criminal case. Criminal cases have their own rules of procedure and require the highest standard of evidence – proof beyond a reasonable doubt (90%+).
Civil cases can be brought by any individual, any corporation, and any governmental entity. Divorce, Personal Injury, bankruptcy, and breach of contract are all examples of civil cases. Unlike criminal cases, the burden of proof is much lower – preponderance of the evidence (51%).
Contrary to a reasonable doubt standard, all a claimant has to do to win in civil court is tip the scale ever so slightly in their favor. So long as the majority of evidence supports the plaintiff’s claim, the plaintiff wins.
Then there are hybrid cases. Hybrids involve matters that can be brought in either civil or criminal court. Theft is a classic example because there is both a civil version and a criminal version. If you are caught stealing, the Government can prosecute you for it. Equally, the person who you stole from could sue you to obtain compensation for their loss.
Civil Asset Forfeiture and Criminal Forfeiture have a similar “hybrid” relationship.
What is Forfeiture? When is it allowed?
Forfeiture is the legal process used by the Government to take ownership of private property away from its owners. However, the law only allows forfeiture in two limited situations:
- When property is used to commit crime, or
- When property is the proceed of crime
For example, if a person uses an airplane to fly cocaine into the United States, the aircraft is subject to forfeiture because it was used to smuggle a controlled substance. Similarly, the money earned by a drug dealer from selling cocaine can also be forfeited because it is the proceeds of illegal narcotic transactions.
When the Government seizes property that it claims was used to commit a crime or is the proceeds of crime, it must choose between proceeding with a criminal forfeiture or Civil Asset Forfeiture.
Criminal Forfeiture Explained
Criminal forfeiture is the type of asset forfeiture that is brought by the Government during a prosecution in criminal court. To pursue criminal forfeiture, prosecutors charge a person with a crime and add an additional count to include forfeiture of any property 1) used to commit that crime or 2) any property that is the proceeds of that crime.
However, criminal forfeiture may 1) only proceed after the person is found guilty or pleads guilty, and 2) it is limited to the property tied to the specific count(s) of conviction. If the person is found not guilty, prosecutors are barred from pursuing criminal forfeiture on any property associated with allegedly committing or profiting from that count.
Equally, if a person is charged with multiple counts and is found guilty of some counts but not guilty of others, criminal forfeiture may only proceed on the property relating to the “counts of conviction”. Property associated with the counts that the person was found not guilty cannot be criminally forfeited.
Because criminal forfeiture is tied to convictions, its legal process only begins at the end of a criminal case. However, there are many cases where criminal defendants will stipulate to forfeiture in an effort to obtain a mitigated sentence or as part of a plea bargain.
Civil Asset Forfeiture Explained
Civil Asset Forfeiture accomplishes the same goal as criminal forfeiture, but is handled in the civil courts. It can be pursued under two different scenarios.
In the first scenario, prosecutors can avoid waiting until the end of a criminal case to seek forfeiture by filing a Civil Asset Forfeiture case in the civil courts while they simultaneously prosecute the same person in criminal court. When this happens, a person will face two distinct legal actions: One in the criminal courts for prosecution of a crime and a second in the civil courts for Civil Asset Forfeiture. Prosecutors may choose this option when they do not want to wait for the end of a criminal case to pursue the forfeiture.
In the second scenario, Civil Asset Forfeiture is pursued by the Government without any criminal prosecution at all. This typically happens when police seize an asset, but no one is arrested – as is often the case in traffic stop seizures, airport seizures, and bank account seizures, to name a few.
Alternatively, prosecutors may investigate a case and realize they do not have enough evidence to charge a person with a crime, but may believe they have enough evidence to forfeit the person’s property. This is due to the lower burden of proof required in a civil case compared to a criminal prosecution.
Criminal prosecutions require proof “beyond a reasonable doubt” (90%+); Whereas Civil Asset Forfeiture requires a “preponderance of the evidence” (51%+). In other words, because it is easier to prove a case in civil court, prosecutors may pursue Civil Asset Forfeiture when they can’t win in criminal court.
Criminal forfeiture is litigated in the criminal courts and are part of a criminal prosecution. Civil Asset Forfeiture is litigated in civil court and can parallel a criminal prosecution or it can be litigated in the absence of a criminal prosecution. Criminal forfeitures take place at the end of a criminal case and must be linked to a “count of conviction”. On the contrary, Civil Asset Forfeiture does not require any arrest, any charges, any prosecution, or any conviction whatsoever.
Have a question about Civil Asset Forfeiture or Criminal Forfeiture? Call us! 954-462-3636