This paper, which has been submitted for publication in Europe, provides the American perspective on the importance of both criminal and civil (non-conviction based) forfeiture as law enforcement tools.
It begins with a discussion of the training and resources necessary to recover forfeitable property and the tracing issues that arise in both criminal and non-conviction based forfeiture cases. It then reviews the reasons why non-conviction based proceedings are an essential tool for recovering assets, particularly in transnational cases, even though tracing requirements make such cases more difficult.
In the discussion of non-conviction based forfeiture, the paper highlights two aspects of U.S. law that have made that remedy particularly effective: the ability to recover money from a foreign bank without requiring the assistance of the Government where the bank is locating, and the ability to bar fugitives from attempting to contest forfeiture actions without surrendering to face pending criminal charges.
Finally, the paper discusses the American experience with giving recognition to foreign forfeiture orders and the difficulty prosecutors in the United States encountered in overcoming judicial resistance to those efforts.
The paper was presented at the University of Luxembourg in June 2015 at the conference entitled, “Chasing criminal money in the EU: new tools and practices?”.