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Simser, Jeffrey --- "Perspectives on Civil Forfeiture" [2009] ELECD 217; in Young, N.M. Simon (ed), "Civil Forfeiture of Criminal Property" (Edward Elgar Publishing, 2009)

Book Title: Civil Forfeiture of Criminal Property

Editor(s): Young, N.M. Simon

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208262

Section: Chapter 1

Section Title: Perspectives on Civil Forfeiture

Author(s): Simser, Jeffrey

Number of pages: 8

Extract:

1. Perspectives on civil forfeiture
Jeffrey Simser*
Civil asset forfeiture is a remedial statutory device designed to recover the
proceeds of unlawful activity, as well as property used to facilitate unlawful
activity. Generally, the state brings a proceeding against property (in rem)
rather than against individuals. In the case of proceeds of unlawful activity, the
court is invited to inquire into the origin of the property. If the provenance of
the title lies in unlawful activity, and the state proves this to the satisfaction of
the court, then the court is empowered to transfer title to the state. Property law
abhors a void in title, and forfeiture ensures no lacuna by passing title to the
state. In the case of property used to facilitate unlawful activity, the court is
asked to inquire into the property's usage. Should this property be forfeited to
prevent further facilitation of unlawful activity?
In general, there are two policy rationales for civil forfeiture. First, gains
from unlawful activity ought not to accrue and accumulate in the hands of
those who commit unlawful activity. Those individuals ought not to be
accorded the rights and privileges normally attendant to civil property law. In
cases of fraud and theft, the proceeds ought to be disgorged and distributed
back to victims. Secondly, the state as a matter of policy wants to suppress the
conditions that lead to unlawful activities. Drug profits also represent capital
for more drug transactions, which can bring further harm to society. Leaving
property that ...