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Overview of Asset Forfeiture Law in the United States - Chapter 1 - Asset Forfeiture Law in the United States - Third Edition
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22067
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Originally from Asset Forfeiture Law in the United States, Third Edition
§ 1-1 Overview Asset forfeiture is an integral part of federal law enforcement in the United States. This introduction to federal forfeiture law attempts to answer three questions: 1) Why is asset forfeiture important to law enforcement? 2) What property is subject to forfeiture? and 3) How is forfeiture accomplished?
§ 1-2 Why Do Forfeiture? The Supreme Court of the United States summarized the goals of the federal asset forfeiture program in Kaley v. United States. Forfeiture, the Court said, serves to punish the wrong-doer, deter future illegality, lessen the economic power of criminal enterprises, compensate victims, improve conditions in crime-damaged communities, and support law enforcement activities such as police training. In short, the goals of asset forfeiture are the goals of criminal law enforcement generally – punishment, deterrence, and incapacitation – plus several additional objectives that forfeiture is uniquely designed to achieve.
a. Punishing the Wrongdoer As most criminal prosecutors know, criminals often care more about keeping the money and other assets derived from their particular crime than they do about serving time in jail. Accordingly, to punish the defendant, the prosecutor seeks not just to put him in jail, but to take away the fruits of his crime and the property that he used to commit it. In the prosecutor’s view, convicting a person of fraud but allowing him to keep the fraud proceeds, or convicting a drug dealer of selling drugs but allowing him to keep the drug proceeds, would reward the criminal for engaging in criminal activity instead of punishing him for it. Thus, prosecutors generally seek the forfeiture of property as part of the defendant’s sentence when he is convicted of a criminal offense, and will insist that any negotiated settlement of a criminal case in the form of a plea agreement include not only the defendant’s admission of his guilt, but his consent to the forfeiture of his property as well. The goal, however, is not just to ensure that the defendant does not retain the proceeds of his crime, but to punish him for committing the crime in the first place. Thus, courts may order the defendant to pay a judgment equal to the proceeds of his crime, even if he has dissipated the money on “wine, women and song,” and even if he has already reimbursed his victims, and thus no longer has any of the proceeds in his possession.
Stefan D. Cassella, as a federal prosecutor, was one of the federal government's leading experts on asset forfeiture law for over thirty years, and now serves as an expert witness and consultant to law enforcement agencies and the financial sector as the CEO of AssetForfeitureLaw, LLC.
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