Asset forfeiture is a term used to describe the government’s confiscation of assets either determined to be the proceeds of crime, or funds and property used to perpetuate criminal activity. An example of the latter could be cars used to transport illegal drugs.
There are two types of forfeiture cases: criminal and civil. Almost all forfeiture cases practiced today are civil. In theory, civil actions are remedial, not punitive like criminal proceedings. Typically, criminal asset forfeiture proceedings occur as part of a sentence following a conviction. The same statutes apply to both types of proceedings—18 U.S.C. §982, through cross-referencing, creates a framework of offenses and procedures governing this type of forfeiture, as does 21 U.S.C. §881.
In civil asset forfeiture proceedings, a criminal charge or conviction is not required to seize. Notice occurs through presentation of the warrant and publication in a newspaper. If a party files a claim within the answer period, a civil hearing commences. In uncontested situations, the forfeiture may be handled administratively.
Civil asset forfeiture hearings include a plaintiff (the United States in the case of Federal forfeitures), a defendant, and the property in question. The owner is effectively put in the position of being a third party claimant. Civil hearings involve a more lenient burden of proof than “beyond a reasonable doubt.” Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove by "preponderance of the evidence" that it is not.
Most forfeiture activity occurs under Federal law, through the Department of Justice’s Asset Forfeiture Program, and most is connected to the War on Drugs.
In the case of a civil proceeding, the innocence of the property owner is typically not a defense. The owner may argue that no crime ever occurred or that the government lacked probable cause. Should these defenses succeed, the government returns the property to the owner. Such cases can cost the property owner upwards of $10,000 and take several months to resolve.