Edited by Barry Rider
Chapter 40: Civil asset recovery: the American experience
In the United States, federal prosecutors routinely employ asset recovery as a tool of law enforcement. The approach takes two forms. In criminal cases, the prosecutor may seek to recover or “forfeit” property as part of the defendant’s sentence, if the defendant is convicted. 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. This chapter discusses the American experience with civil, or non-conviction-based, asset recovery. 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. In the United States, the term “civil forfeiture” refers to non-conviction-based forfeiture proceedings. It contrasts with “criminal forfeiture,” which requires a criminal conviction and is imposed as part of a criminal sentence. Experience shows, however, that the term “civil forfeiture” can be confusing when employed in the international context. 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.
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