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Chapter 2 Courts, Controversy, & Reducing Crime   (p. 44)

 

 

 

Asset forfeiture involves government seizure of the personal assets  obtained  from,  or  used  in,  a  crime.  Assets  refer  to  property, businesses, cars, cash, and the like. For example, a car used in the distribution of illegal drugs may be forfeited  to  the  government.  Asset  forfeiture  was  part  of  British  common law as early as 1660. More recently, it is identified with the Racketeer Influenced and Corrupt Organizations Act (RICO for short), enacted by Congress in 1970. Congress was concerned  about  the  infiltration  of  organized  crime  into  the  regular business marketplace and sought to discourage such activities not only by imposing criminal penalties but also by making property obtained from the profits of the illegal enterprise subject to forfeiture.

 

 

 

Thus, drug dealers who pour their profits  into  a  restaurant  can  have  the  restaurant  seized  by  government agents. But asset forfeiture is not limited to criminal actions. The more  potent  form  of  asset  forfeiture  is  civil  in  nature.  The  government  is  proceeding  not  against  a  person  but  against  the property in what is termed an in rem procedure (a lawsuit brought against a thing rather than against a person). Through the years, Congress has greatly expanded the scope of asset forfeiture, and nearly all states have enacted asset forfeiture laws. Some cities have even enacted forfeiture laws to confiscate cars used in street racing, operated by drunk drivers, or driven by those with revoked licenses (Worrall, 2008).The major concern over asset forfeiture laws is that they make  it  too  easy  for  law  enforcement  officials  to  seize  the  assets  of  innocent  persons,  especially  since  civil  forfeiture  actions  require  a  low  burden  of  proof.

 

 

 

The  Supreme  Court  placed some limits on governmental forfeiture power in Aus-tin v. United States,1993. In that case, a South Dakota man had his mobile home and auto body shop seized after being convicted of selling two grams of cocaine. The Court unanimously ruled that the amount seized—almost $43,000—was disproportionate to the crime. But the Court has nonetheless upheld the seizure of property from innocent owners over due process challenges (Bennis v. Michigan,1996; United States v. Ursery, 1996).After years of debate, Congress passed the Civil Asset Forfeiture Act of 2000. Prior to the Act’s passage, property owners had been required to prove that their property was not  subject  to  forfeiture.  Today,  however,  the  government  must  prove—by  a  preponderance  of  the  evidence—that  property is subject to forfeiture. The Act also awards attorneys’ fees to those who successfully challenge confiscation of property. Research  concludes  that  there  is  no  clear  answer  to  whether asset forfeiture encourages policing for profit. How-ever,  one  study  found  that  local  law  enforcement  agencies  circumvent  restrictive  state  laws  (those  placing  limits  on  the  proceeds  they  can  receive)  by  teaming  up  with  federal  officials  to  receive  equitable  sharing  payments  (Worrall  &  Kovandzic, 2008).The debate over asset forfeiture crosses traditional ideological lines. Due process advocates want limits on asset forfeiture because they think that innocent people end up being presumed guilty. Similarly, crime control supporters also want strong  restrictions  on  asset  forfeiture  because  they  think  it  improperly gives the government too much authority over important property rights.

 

 

What do you think? Should more limits be placed on law enforcement  officials’  ability  to  seize  assets  of  suspected  wrongdoers? Do large financial incentives like these provide too great a temptation?

 

 

 

Each student is required to prepare and submit answers to each chapter’s COURTS, CONTROVERSY, & _____________________ starting with Chapter 2.  These are located in a light red/pink shaded sections within each chapter.  These answers MUST be thoroughly answered, typed, NO MORE THAN TWO pages in length, double-spaced, 12-point font, Times New Roman or similar font.  Be prepared to discuss these answers at the beginning of every class.  We will discuss the answers and students will be called upon at random to informally present their findings/answers/analysis.  Please submit your own work – plagiarism will not be tolerated.  You will receive full credit for these weekly COURTS, CONTROVERSY, & ________________ submittals for BOTH submitting your answers and for being prepared to discuss your answers in class.  These MUST be submitted via Blackboard no later than 5:59p each Monday.  NO late submittals will be accepted.

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