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Criminal Forfeiture Laws
Federal prosecutors increasingly have become enamored with the aggressive use of criminal forfeiture in white-collar cases. In 2008, the Department of Justice (DOJ) created a National Asset Forfeiture Strategic Plan to “develop and implement policies and procedures to ensure that asset forfeiture is an integral part of every investigation and prosecution.” Forfeiture is viewed by the government as a “vital weapon” in its arsenal to “strip criminals of their illicit wealth.” U.S. Department of Justice, Asset Forfeiture Program, “National Asset Forfeiture Strategic Plan 2008-2012″ at p. 3. When, however, the government collection process begins before any determination of guilt, the zealous pursuit of the supposed fruits of the yet'to-be-proven crime runs smack into the constitutionally-protected right to a fair trial.
Background
Because criminal forfeiture is considered a part of a defendant's punishment, an individual first must be convicted of a crime before his property actually is subject to forfeiture. That being said, aided by statutes designed to prevent the secreting of assets, the government has exercised wide latitude in freezing or seizing assets connected to a charged crime prior to trial, thereby restricting a defendant's ability to use those funds to mount a defense. This restriction can have a particularly devastating impact in complex white collar cases where an effective defense can be expensive and where the government often paints allegations with a broad brush, thus calling into question a defendant's extensive business activity and thereby implicating virtually all of the defendant's assets.
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