Criminal and Civil Forfeiture Defense in Drug Cases in Kentucky

Forfeiture is the government seizure of property connected to illegal activity. Utilized by the federal and state law enforcement in the ongoing “war on drugs,” the practice has not been without controversy. Law enforcement has asserted that it is a necessary and effective deterrent to drug crime, while opponents argue that existing procedural safeguards result in too many innocent parties having their property taken away, with little or no recourse for recovery. If your property or assets have been the subject of a criminal or civil forfeiture, recovery may be possible. 

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Property Subject to Forfeiture

Government authority to seize property connected to illegal activity comes from federal statutes, as limited by those laws and the Constitution. Authorizing provisions of state and local statutes tend to be similar to federal law. The United States Supreme Court in Bennis v. Michigan identified certain categories of property subject to forfeiture:

• Contraband: property for which ownership itself is a crime (illegal drugs or smuggled goods, for example)
• Proceeds from illegal activity: property that results from, or can be traced back to, illegal activity
• Tools or instrumentalities used in the commission of a crime: property used to commit a crime (cars, boats or real estate, for example)

Two Forms of Forfeiture: Criminal and Civil

The government can take title to private property under criminal or civil law. Criminal forfeiture is a punitive measure taken against a defendant after a conviction, where the government seizes property as a part of the sentence. Because it is a criminal proceeding, a defendant is afforded the protections of the Fourth and Fifth Amendments. While the crime has to be proved beyond a reasonable doubt, the forfeiture requires a lower burden of proof. In criminal forfeiture cases, the government need only show by a preponderance of the evidence that the defendant obtained the property around the time of the crime and that it was unlikely it came from any other source. The burden then shifts to the defendant to prove this is not the case.

By contrast, civil forfeiture actions proceed against the property itself, which is the defendant in the case rather than the owner. A criminal charge or conviction is not necessary before the government can seize. Prior to the Civil Asset Forfeiture Reform Act of 2000, law enforcement only needed to show probable cause that the property was involved in a crime, usually through a search warrant, before the taking of the property. The 2000 Act raised this burden of proof to a preponderance of the evidence standard. The majority of the forfeitures pursued by the government are civil.

Forfeiture proceeds are typically used to fund law enforcement activities, such as paying informants, buying equipment, and building prisons. In some states, forfeiture proceeds are used for other purposes, such as to support public education. Because of law enforcement’s strong financial incentive to use civil instead of criminal forfeiture, critics claim that the practice has moved from being a means to fight drug-related crime, to be an end in itself. While provisions of the 2000 Act made it easier for innocent persons to challenge the seizure in court and get their property back, the practice remains controversial.