![]() Indeed, many prosecutors relate that it was the loss of the luxury items acquired through a life of crime, not the period of time to be spent behind bars, that most distressed defendants. Incarceration is a form of punishment but so is forcing the wrongdoer to disgorge the accouterments of the lavish lifestyle he acquired through his criminal acts. Second, forfeiture is seen as a form of punishment. 1 Whatever benefit the wrongdoer obtained or retained as a consequence of his offense is simply forfeited to the Government. Frequently, they are overlapping and mutually reinforcing.įirst, forfeiture serves the non-punitive purpose of taking the profit out of crime. Indeed, it would be the rare case if only one of the following motives were to apply. The prosecutor may have multiple reasons for seeking to recover the assets involved in the commission of a criminal offense. ![]() To avoid the confusion and the unnecessary distraction created by the use of the term “civil forfeiture” when discussing asset recovery in the international context, I will use the term “non-conviction-based” forfeiture from this point forward. ![]() Experience shows, however, that the term “civil forfeiture” can be confusing when employed in the international context. It contrasts with “criminal forfeiture,” which requires a criminal conviction and is imposed as part of a criminal sentence. In the United States, the term “civil forfeiture” refers to non-conviction-based forfeiture proceedings. It discusses the prosecutor’s motivations for seeking to forfeit assets, the types of property that may be forfeited, the procedures that govern civil asset forfeiture, the advantages of civil or non-conviction-based asset forfeiture over criminal forfeiture, and the ways in which the United States, through judicial decisions and legislation, has reconciled the non-conviction-based approach with the requirements of basic human rights and civil liberties. This article discusses the American experience with civil, or non-conviction-based, asset recovery. Alternatively, the prosecutor may commence a civil proceeding, naming the property as the defendant and seeking to forfeit the property independent of any criminal proceeding. In criminal cases, the prosecutor may seek to recover or “forfeit” property as part of the defendant’s sentence, if the defendant is convicted. Records from the English Parliament show that on January 29, 1542, Henry VIII secured bills of attainder that resulted in the executions of a number people holding titles of nobility.In the United States, federal prosecutors routinely employ asset recovery as a tool of law enforcement. Constitution.īills of attainder were originally part of English Common Law and were typically used by the monarchy to deny a person’s right to own property, the right to a title of nobility, or even right to life. states are similarly prohibited from passing bills of attainder on their citizens by Article I, Section 10 of the U.S. As direct denials of civil rights and liberties, bills of attainder are prohibited by Article I, Section 9 of the U.S.Arbitrary British enforcement of bills of attainder on American colonists was a motivation for the Declaration of Independence and the American Revolution. ![]()
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