Unlike civil forfeiture, U.S. criminal forfeiture laws have never been reformed at the federal level. Congressman Henry Hyde (R–IL), who served as chairman of the House Committee on the Judiciary from January 1995 to January 2001, decided to focus solely on civil forfeiture reform—a decision made to avoid a new round of fights with the Department of Justice (DOJ) that would have held up enactment of Hyde’s reform bill, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).[1]
CAFRA actually expanded the scope of criminal forfeiture as part of the compromise with the DOJ that was necessary to secure passage of the bill in both houses of Congress through the unanimous consent procedure.[2] Not coincidentally, the DOJ pushed major changes in criminal forfeiture procedure (found in Rule 32.2 of the Federal Rules of Criminal Procedure) through the Advisory Committee on Rules of Criminal Procedure in 2000, just as CAFRA was nearing enactment.
The above-noted rule changes consistently reduced or eliminated procedural rights and protections for defendants—including the right to have the forfeiture issue decided by a jury—and for innocent third parties with interests in the property subject to criminal forfeiture. These alterations also tilted the criminal forfeiture “playing field” sharply in favor of the prosecution. Since then, criminal forfeiture has steadily become more oppressive thanks to other amendments to Rule 32.2 in 2009 and unwarranted judicial lawmaking sought by DOJ prosecutors.[3]
Some federal judges have engaged in tortured readings of criminal forfeiture statutes to expand prosecutorial power. This might be explained in part by the U.S. Supreme Court’s overly deferential attitude toward the criminal law.[4] In fact, the High Court has declined to review most of these criminal forfeiture issues, so erroneous lower court decisions have been left standing.[5]
Despite the many problems with civil forfeiture, federal and state laws now provide considerably more due process safeguards to a property owner than is the case with criminal forfeiture.[6] The biggest problem with civil forfeiture is that most owners cannot afford—or cannot even find—competent counsel or any counsel to defend the case.[7] In criminal forfeiture cases at the federal level, an indigent defendant (but not an indigent third party) is entitled to appointed counsel. However, few appointed counsel are competent or have the time and resources to litigate complex criminal forfeiture issues. Criminal defendants are easily buffaloed into signing plea agreements by prosecutors who are forfeiture specialists, and these plea agreements often expressly waive all of the defendant’s rights to resist what often turns into an overly broad or excessively punitive forfeiture order.
Many years ago, the Supreme Court observed that “broad [criminal] forfeiture provisions carry the potential for Government abuse and ‘can be devastating when used unjustly.’”[8] Regrettably, the government is now abusing criminal forfeiture on a daily basis to raise money earmarked for law enforcement, to deprive defendants of the wherewithal to retain counsel,[9] and to bully defendants into harsh and unfair plea agreements, and no one but underresourced defense counsel is trying to stop it.
Procedural Protections and Substantive Rights
What follows is a comparison of the procedural protections and substantive rights available to property owners facing civil and criminal forfeiture proceedings. With the major exceptions of a conviction being required and the right to appointed counsel, civil forfeiture offers superior protections for the property owner.
1. Civil forfeiture generally affords greater procedural rights than criminal forfeiture affords.
If property is seized pursuant to a warrant of seizure under 21 U.S.C. § 853(f), there is no time limit except the criminal statute of limitations (typically five years) for seeking criminal forfeiture. If the property is restrained under 21 U.S.C. § 853(e)(1)(B), the order is effective for not more than 90 days unless extended by the court “for good cause shown or unless an indictment or information…has been filed.”
In a “nonjudicial civil forfeiture proceeding”[10]under CAFRA, by contrast, the government must comply with two separate deadlines.
First, under 18 U.S.C. § 983(a)(1)(A)(i), the government must send written notice to interested parties “as soon as practicable, and in no case more than 60 days after the date of the seizure.”[11] A supervisory official in the headquarters of the seizing agency may extend the 60-day period for up to 30 days, and a court thereafter can grant further extensions of time under certain conditions on an ex parte basis pursuant to 18 U.S.C. § 983(a)(1)(B)–(D). The courts have been liberal in granting such extensions, thereby undermining the effectiveness of the 60-day notice provision. Moreover, although the government suffers no real penalty if it misses the 60-day deadline, it is still a substantive limitation on the government that is not present in the criminal context.
Second, if a claimant sends an administrative claim to the seizing agency, the government has 90 days from the date when the claim is received in which to file a complaint for civil forfeiture in court or to obtain a criminal indictment alleging that the property is subject to criminal forfeiture; otherwise, the property must be released. If the government fails to do any of these things, forfeiture is barred under 18 U.S.C. § 983(a)(3).
2. Civil asset forfeiture generally affords no right to counsel, whereas criminal forfeiture generally does.
In a criminal forfeiture case, an indigent defendant has a right to appointed counsel under the Criminal Justice Act (CJA), but an indigent third party who wishes to contest a criminal forfeiture in an “ancillary proceeding” under 21 U.S.C. § 853(n) has no right to appointed counsel. Further, if the third-party claimant prevails against the government, CAFRA does not authorize a fee award for the third party.
In a civil forfeiture case, an indigent property owner generally has no statutory right to appointed counsel except in one narrowly defined situation: where the government is seeking to forfeit the owner’s “primary residence.”[12] A court has discretion to appoint an attorney already representing a criminal defendant under the CJA to be counsel in a related civil forfeiture case under section 983(b)(1). The courts appear to exercise this authority only seldom, perhaps because defense counsel commonly are unaware of the statutory provision in question and therefore fail to ask for such an appointment. The court may also appoint pro bono counsel for an indigent claimant under 28 U.S.C. § 1915(d), but few claimants are aware of this statutory provision, and courts have rarely used it in civil forfeiture cases.
Under 28 U.S.C. § 2465(b)(1), if the claimant prevails against the government, CAFRA requires that the government pay the “reasonable” attorney fees of the claimant. This fee-shifting provision is no substitute for appointed counsel—a critical reform provided in the House-passed CAFRA bill in 1999 that was removed from the final Senate bill in order to obtain passage by unanimous consent of both houses in 2000.
3. The ability to obtain dismissal of a forfeiture action is greater in the civil context than it is in the criminal context because there is an early opportunity for discovery and the filing of a dispositive motion.
It is well known that discovery is severely limited in federal criminal cases, while some states have far more generous criminal discovery rules. So a defendant who is faced with a boilerplate, wholly opaque criminal forfeiture allegation in the indictment cannot use criminal discovery to determine what the government’s contentions really are and what evidence the government has to support them.
In civil forfeiture cases, discovery proceeds under the Federal Rules of Civil Procedure, which allow a party to discover everything relevant to the case unless it is privileged. Because the government typically has much greater investigative resources than a private party has, civil discovery serves to level the playing field, at least where a claimant can afford competent counsel. A claimant can require the government to state all of the evidence known to the government that supports each allegation in the civil forfeiture complaint, and all of the government’s witnesses can be deposed before trial.
The discovery process often produces evidence that leads to an early settlement or to a successful motion for summary judgment, thereby avoiding the expense of a trial. By contrast, it is seldom possible to obtain dismissal of criminal forfeiture charges before trial, and it is practically impossible to settle a criminal forfeiture charge before trial, outside of a plea agreement.
4. Civil asset forfeiture often provides greater opportunity to be heard promptly than criminal asset forfeiture provides.
In a criminal forfeiture proceeding, the defendant does not have a meaningful opportunity to be heard on the forfeiture aspect of the case until after he has been convicted. Under 21 U.S.C. § 853(k)(1), third parties are barred by statute from intervening in the criminal forfeiture case until after …