Practice and Procedure in State and Federal Courts - Term Paper Example

A shift in the way criminal justice is administered towards more rehabilitative efforts of reforming the criminals and integrating them back into society made it necessary they are given the means to get back on their feet. A modern version of this concept is not directed at an individual criminal but more on the crime syndicates by depriving them of their ill-gotten gains and compensate victims (Young 1). DiscussionThere are two kinds of forfeitures being carried out today: criminal and civil cases.

In the first case, criminal forfeitures are the result of a court settlement or a judicial award in that the convicted criminal is punished by taking away the assets after a conviction. In civil cases, the government files suit to recover a property item but not against the property owner. The owner himself is reduced to being a third-party claimant who has to prove the money used to buy or acquire the property came from legal or legitimate sources. The objectives of the new civil forfeiture laws are two-fold: deprive the criminals of the facilities and properties they use to commit their crime or furtherance of their criminal activities and use the proceeds of these seized properties to support law enforcement, such as hiring more cops or increasing a budget.

An order for a civil forfeiture recovery case does not require a prior criminal conviction. The whole intent is to disable criminals from eventually resuming the activities (Edgeworth xxii). The only requirement for filing a forfeiture case is probable cause a certain property is being used in criminal activities. A property owner, on the other hand, has to prove otherwise through a preponderance of the evidence that it was acquired using legitimate sources of income. The new laws today reversed the situation in that it is now the government that has to prove it using a preponderance of evidence instead of the previous probable cause only that can be a source of abuse of power and arbitrariness on the part of law enforcement agencies.

In other words, the burden of proof is on the government instead of the property owner. There is a very good reason why governments around the world are resorting to civil forfeiture cases in their fight against crime syndicates. The heads of organized crime are often very crafty people; they conduct their activities far away from the crime scene and this makes prosecuting them in court very difficult. Filing a criminal case against them is a struggle with more stringent evidence standards to score a conviction whereas forfeiture is an easier way to disable these crime syndicates by confiscating the proceeds of their crimes.

A syndicate head is also powerful financially and can hire the best and most expensive lawyer to circumvent the law. Crime heads are very adept at hiding the origins of their ill-gotten gains. It is oftentimes very difficult to prosecute them successfully in a criminal court to secure a conviction. ConclusionCivil forfeiture finds a greater acceptance among governments and law enforcement agencies today because it is a good way to fight crime syndicates by depriving them of their ill-gotten wealth.

It makes the criminals think twice about their activities because all the effort would be gone to waste if the proceeds end up eventually in government hands. Whether it is cash or property or anything tangible and valuable, forfeiture takes out the financial incentive. It has raised some concerns about human rights and double jeopardy violations but it is quite effective against terrorism, illegal drugs and money laundering as a punitive tool (Miller 99).