Choose Your Weapon: Is civil forfeiture really necessary, or is it an undesirable shortcut to real law enforcement.
Civil – or non-conviction-based – forfeiture is an increasingly common way for governments to relieve criminal wrongdoers of the proceeds of their crimes and to restore the property to the victims of the offense. Led by the United States, the UK, South Africa and Australia, many countries are now adopting civil forfeiture regimes to allow for the recovery of criminal proceeds without the necessity of obtaining a criminal conviction.
The question that is asked, however, is whether this is necessarily a good thing. Is civil forfeiture and essential law enforcement tool, or is it an unnecessary shortcut that deprives property owners of their property without the procedural protections that would be available in a criminal prosecution.
This article makes three points:
- First, that it not necessarily the case that a criminal prosecution and conviction is always the optimal result of an investigation, and that asset recovery is always a less desirable alternative.
- Second, that even when a criminal conviction would be preferred, civil asset recovery may be the only available alternative, and thus may be pursued out of necessity.
- Even so, law enforcement must acknowledge that there are instances in which a criminal conviction and prosecution would be the optimal result, but that the Government settles for asset recovery out of convenience, or because priority is given to conserving resources.