A Research Guide to Civil Asset Forfeiture  

Asset forfeiture is the involuntary surrender of one's property to the government without compensation either as a consequence of criminal conviction or in the event of an in rem proceeding against the property itself, where the owner/possessor is merely a third party to the proceedings, also known as Civil Asset Forfeiture.  This Research Guide focuses on Civil Asset Forfeiture and it's use as a revenue source for funding other law enforcment activities.

Related Terms:

Equitable Sharing:  State and local law enforcement agencies can transfer the assets they seize - for a percentage of their value - to federal law enforcement agencies for federal forfeiture proceedings, when federal law applies.  This reciprocal arrangement is common when many law enforcement agencies work together on wide-reaching investigations.

Profit motive:  Because law enforcement agencies are permitted to use or sell the property they seize, they can use civil asset forfeiture to increase revenues and supplement budgets.

Standard of proof:  Jurisdictions vary, but the most common standard the government must meet (under the federal CAFRA statute and in most states) to claim property in a civil asset forfeiture is "a preponderance of the evidence."  Upon that showing, "innocent owners" must demonstrate that they were not involved in or aware of their property's crimes.

Amy L. Macrina is a 3rd-year law student at Georgia State University College of Law.  Upon completing the J.D. requirements in December, 2010, Amy plans to pursue a career in public interest litigation in the Atlanta, Georgia area.

This Research Guide will not address, except in general comparison, the use of criminal asset forfeiture as a punitive measure.  And, the surrender of property with compensation is not properly understood as asset forfeiture in this context.  Because litigation and legislative reforms are ongoing, the information in this guide does not represent a comprehensive look at the law across all jurisdictions.  This Guide will focus on primary and secondary sources in federal law and also has information on interest groups and other materials relevant to state and international research.

Sources:

Case law:  Asset Forfeiture has its roots in English common law, and case law is an indispensable component of thorough research on this topic.  This guide only briefs three illustrative cases; however, each of the referenced statutes, annotated sources, and online resources also cite to relevant cases.  Because many agencies make use of civil asset forfeiture as an enforcement tool and statutes throughout the U.S. Code provide for asset forefeiture, narrowing the scope of research (by browsing the other sources of information on this guide) is recommended before beginning to search case law.

Statutes:  The materials in this guide track the statutory and regulatory law as it has developed following CAFRA, the Civil Asset Forfeiture Reform Act.  CAFRA is the major federal legislation governing civil forfeiture since 2000.

Secondary Sources:  Civil Asset Forfeiture is a highly contentious practice of law enforcement which has gathered the attention of some leading commentators and has lead to often-controversial litigation, investigations, and legislative activism.  As a result, literature abounds on the pros and cons of the practice, in the form of law review articles, books, and reports.  Legal encyclopedias and the American Law Reports also have entries, included here.

Electronic Resources:  Targeted searches with the common legal research tools such as LexisNexis and Westlaw return a wealth of information on Civil Asset Forfeiture, given the large body of caselaw, statutes, and regulations covering the topic.  If general information or less persuasive authority will do, there are websites tailored to this topic, although the sites are often sponsored by a group solidly on one side of the debate surrounding the propriety of Civil Asset Forfeiture.  All of the information assembled in this guide was accessed through Lexis, West, and Google searches.

Interest Groups:  Law enforcement agencies, grassroots organizations, non-profit public interest groups, federal administrative departments, and political watchdogs all have a role in the Civil Asset Forfeiture debate.  In many cases, their efforts for or against the practice are highly organized and their incentives entrenched.  A researcher or practitioner who intends to stay abreast of the law in this area must remain aware of the interests driving development of the law.

This Research Guide should be used by practitioners and researchers looking for resources/information on Civil Asset Forfeiture.  It is not intended to convey any legal advice or policy preference, nor is it an exhaustive listing of sources.  The author has attempted to gather relevant primary authorities, commentaries, and advocates' materials to assist researchers with the essential elements of the topic.  This is an evolving area of law; the annotations that follow are only a starting-point for research.  For further assitance, please contact a law librarian.