Legal Measures for Targeting the Proceeds of Crime
Edited by Simon N.M. Young
Chapter 1: Perspectives on Civil Forfeiture
Jeffrey Simser* Civil asset forfeiture is a remedial statutory device designed to recover the proceeds of unlawful activity, as well as property used to facilitate unlawful activity. Generally, the state brings a proceeding against property (in rem) rather than against individuals. In the case of proceeds of unlawful activity, the court is invited to inquire into the origin of the property. If the provenance of the title lies in unlawful activity, and the state proves this to the satisfaction of the court, then the court is empowered to transfer title to the state. Property law abhors a void in title, and forfeiture ensures no lacuna by passing title to the state. In the case of property used to facilitate unlawful activity, the court is asked to inquire into the property’s usage. Should this property be forfeited to prevent further facilitation of unlawful activity? In general, there are two policy rationales for civil forfeiture. First, gains from unlawful activity ought not to accrue and accumulate in the hands of those who commit unlawful activity. Those individuals ought not to be accorded the rights and privileges normally attendant to civil property law. In cases of fraud and theft, the proceeds ought to be disgorged and distributed back to victims. Secondly, the state as a matter of policy wants to suppress the conditions that lead to unlawful activities. Drug profits also represent capital for more drug transactions, which can bring further harm to society. Leaving property that facilitates unlawful activity in an individual’s...
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