The government’s latest forfeiture abuse: criminal forfeiture of property not owned by a criminal defendant

(c) 2015 Brenda Grantland
reprinted from Truth and Justice Blog, 10/29/2015

As I have stated in previous blogs, third parties in criminal forfeiture cases are often treated worse than civil forfeiture litigants. 1/

In criminal forfeiture cases forfeitability of the property is determined in the criminal trial or guilty plea, and third parties are completely excluded from those processes. 2/  As a result:

  • (a) they have no right to intervene in the criminal case to raise a defense that is not being raised by the criminal defendant; 3/
  • (b) they have no right to confront and cross-examine prosecution witnesses in the government’s case in chief against their assets;
  • (c) they are never allowed discovery about the basis for the government’s forfeiture case;
  • (d) third parties are generally not permitted to file suppression motions (a right afforded civil forfeiture litigants); 4/
  • (e) they are not allowed to object to the criminal defendant’s plea bargain agreeing to forfeit their property;
  • (f) even when they get to their third party hearing process, third parties are not allowed to challenge the factual basis (“nexus”) for the forfeiture at all; and
  • (g) even if they win, they may not be entitled to attorney’s fees under CAFRA, though they may be entitled to attorneys fees under the Equal Access to Justice Act.

In short, third parties have their property tied up in court for years while the criminal defendant litigates his/her case.  They are forced to wait until after the defendant is convicted, and after their property is forfeited, and after the criminal defendant is sentenced before they have any right to participate in any court proceedings at all.


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The way they are enforcing criminal forfeiture laws against third parties is just plain criminal

(c) 2014 Brenda Grantland
from Truth and Justice Blog, 12/6/2014

Today I approved the first comment ever on this blog.  I screen all comments to avoid spam and because I don’t want a bunch of comments that don’t contribute substantially to the issue under discussion.

The comment I approved today — posted November 30, 2014 by “Folly” in response to my article “Criminal forfeiture laws need to be reformed too” — is well worth reading.  Scroll down to the end of the above linked blog article to read Folly’s comment, describing his/her experience as a third party in a criminal forfeiture case.   This comment illustrates exactly why the criminal forfeiture laws need to be amended.

As I understand it, Folly’s assets including his/her residence and bank accounts were seized in 2008.  Folly and a codefendant were indicted in 2009.  After a 3-week trial in 2011, the jury acquitted Folly and convicted the codefendant.  The codefendant appealed.  Two years after Folly’s acquittal the judge set a hearing on Folly’s assets.  A year after the hearing the court finally ruled on Folly’s third party petition, finding Folly’s assets were still forfeitable despite Folly’s acquittal.


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Criminal forfeiture laws need to be reformed too

(c) 2014 Brenda Grantland
Truth and Justice Blog, 11/4/2014

In recent months the mainstream news media has rediscovered the abuses of civil asset forfeiture as an issue of concern.  On October 11, the Washington Post published an excellent series of articles on forfeiture abuse “Asset seizures fuel police spending.”  Other print media have begun jumping on the bandwagon, publishing their own original stories.  See the Forfeiture Endangers American Rights Foundation’s website’s What’s New page for summaries of recent forfeiture articles.

Television has rediscovered the forfeiture issue too, with the most hilarious skewering of civil asset forfeiture ever, by John Oliver on Last Week Tonight, on October 5, 2014.  Already, as of today, 3,709,577 people have watched the YouTube video of the episode.

We are grateful for all of the bad publicity civil forfeiture is getting and that people are beginning to clamor for reform, but reforming civil forfeiture (again!) will only cure half the problem.

Criminal forfeiture has become even more abusive than civil forfeiture.


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