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A Broadening Consensus to Narrow Asset Forfeiture

By Edmund W. Searby

Asset forfeiture has a long history in our legal system. We inherited it from the British, who used forfeiture as a weapon to combat piracy and customs offenses on the high seas. Modern asset forfeiture has expanded its reach from its maritime origins to a broad range of crimes in a three-part system of criminal, civil and administrative forfeiture. The three systems have varying procedures, but all allow the government to forfeit property that has been illegally obtained or used.

The U.S. Supreme Court has recognized that asset forfeiture “statutes serve important governmental interests such as 'separating a criminal from his ill-gotten gains,' 'returning property, in full, to those wrongfully deprived or defrauded of it,' and 'lessening the economic power' of criminal enterprises.” Honeycutt v. United States, 198 L. Ed. 2D 73 (U.S. 6/5/17) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629-30 (1989)). [For more about Honeycutt, see In the Courts, infra.] Today, federal and state governments forfeit billions of dollars in private property.

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