Criminal Forfeiture and the Necessity for a Post-Seizure Hearing - Are CCE (Continuing Criminal Enterprises Act) and RICO (Racketeering Influenced and Corrupt Organizations Act) Rackets for the Government?

• NCJ Number: 92200
• Journal: St John's Law Review Volume: 57 Issue: 4 Dated: (Summer 1983) Pages: 776-804
• Author(s): J A Hegler
• Date Published: 1983
• Length: 29 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

An adversarial hearing should take place following the issuance of a restraining order pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Continuing Criminal Enterprises Act (CCE).

Abstract

These restraining orders can be imposed on the indicted individual's property during the pendency of the trial. Upon conviction, the property is forfeited to the government, thereby removing it from the working capital of organized crime. Although these provisions appear to serve as effective weapons to attack the economic foundation of organized crime, the procedural aspects of the forfeiture process have been called into question. Neither of the laws outlines the procedural method to be used in accomplishing a property seizure. Moreover, analogous case law or statutes do not exist. As a result, several courts have concluded that a hearing is constitutionally mandated, while others have declined to adopt such a position. The main reason for advocating an adversarial hearing is the requirement of due process. The hearing should take place immediately after the government restrains property alleged to be subject to forfeiture. Such a requirement minimizes the possibility for error and abuse inherent in the broad grant of enforcement power embodied in both statutes. Footnotes which contain references are provided.