In terms of illegal activities, confiscation is synonymous with confiscation for practical reasons – ill-gotten profits are forced by the offender to be abandoned. The Securities and Exchange Commission (SEC) prosecutes insider traders who profit from non-public material information. Limited by resources, the SEC can only catch a portion of insider traders, but if it can and is able to successfully pursue these cases, it will impose forfeiture of all business profits as well as civil penalties and possible jail time. Opponents of civil property forfeiture laws cite an increased risk of abuse, as law enforcement agencies in many states have an incentive to seize property because they receive some or all of the proceeds of the sale. To address these concerns, some state legislators are determining where revenue should go, with a focus on how much, if any, should be given to law enforcement. Seven states and Washington, D.C., divert 100% of confiscated funds for non-law enforcement government purposes. For example, the Indiana and Missouri Constitutions allocate all expiration proceeds to public education. In other states, a certain percentage of the proceeds of confiscation – between 50% and 100% – go to local law enforcement. In 2015, Georgia passed a law limiting the amount of money an agency or task force can receive to one-third of the agency`s annual budget. It allows prosecutors to collect 10% of the proceeds of confiscated property, and the remaining amount is to be used for defense of the poor, drug treatment, rehabilitation, prevention, drug education, and victim and witness assistance programs. Confiscation takes two different forms: criminal and civil. Almost all contemporary confiscations concern the civil variant.
Criminal forfeiture acts as punishment for a crime. It therefore requires a conviction whereby the State confiscates the assets in question from the offender. Civil forfeiture is based on the idea (a legal fiction) that the property itself, not the owner, has violated the law. Thus, prosecutions are directed against the person or thing involved in an illegal activity established by law. Unlike criminal confiscation, actual confiscation does not require a conviction or even a formal criminal complaint against the owner. This is the source of his appeal to law enforcement and the threat he poses to those who fear abusing or circumventing constitutional protections. Most forfeiture activities take place under federal law, and most are related to illicit drug trafficking. The Department of Justice created the National Property Review and Forfeiture Fund in 1985 and conducted $27 million in drug-related forfeitures that year. By 1992, total sales had reached $875 million.
Many States have followed suit and implemented their own civil law forfeiture programmes. Cities and other local governments have cooperated in forfeiture prosecutions under federal and state drug laws. They themselves have used these laws to deal with local problems, ranging from dangerous shelters to prostitution, and now for the problem of drunk driving. Except as required by law (as provided in 18 U.S.C. § 981(a)(2)), the innocence of the owner is generally not a defense. In addition, the courts strictly interpret legal defences. For example, courts may apply an objective standard to determine whether the owner must have known of the illegal use of the property, rather than requiring proof of actual knowledge. The owner can argue that no crime ever occurred, that the government had no probable cause, or that the property is not closely enough connected to the crime to be considered a tool or product. If required by law, the confiscation procedure may be criminal or civil as a sanction for illegal or prohibited activities.
The confiscation process often involves proceedings in court. Asset confiscation is an important legal instrument that serves a number of mandatory law enforcement purposes. Asset forfeiture aims to deprive criminals of the proceeds of their crimes, break the financial backbone of organized crime syndicates and drug cartels, and recover assets that can be used to compensate victims and deter crime. In the words of former President George Bush, “Asset forfeiture laws allow the government to take the ill-gotten profits of drug lords and use them to bring more police officers onto the streets.” NYPD Chief Howard Safir invoked deterrence when he said, “We believe that. The threat of civil forfeiture and the possibility of losing your car have helped reduce the number of motorists willing to take the risk of being caught intoxicated. On the other hand, a civil rights group filed a lawsuit challenging the legality and constitutionality of the New York program.
