Criminal Forfeiture - Attacking the Economic Dimension of Organized Narcotics Trafficking

• NCJ Number: 87809
• Journal: American University Law Review Volume: 32 Issue: 1 Dated: (Fall 1982) Pages: 227-255
• Author(s): I A Pianin
• Date Published: 1982
• Length: 29 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

Although criminal forfeiture offers the only real possibility of eradicating organized drug trafficking enterprises, procedural deficiencies eviscerate the forfeiture provision. These may be remedied by such procedures as seizure prior to notice and substitution of assets.

Abstract

Criminal forfeiture is the postconviction divesture of the defendant's property or financial interest that has an association with his/her criminal activities. One of the two new statutes providing a criminal forfeiture penalty, the Continuing Criminal Enterprise (CCE) provision, was intended by Congress to affect primarily those offenders engaged in repeated and lucrative drug trafficking. Despite the CCE, forfeiture of criminal assets has occurred infrequently, primarily because of the statute's imprecise forfeiture language and the practical complexities inherent in CCE prosecutions. Because the statute is silent on the degree of association required between the criminal enterprise and the property subject to forfeiture, prosecutors have been reluctant to seek forfeiture under the CCE, and courts have been indecisive in forfeiture cases. Serious problems arise when prosecutors seek forfeiture of property that has been transferred many times, and the requirement that the defendant be given notice of the Government actions taken against him provides time for the defendant to transfer or remove property from U.S. jurisdiction. Provision for the seizure of forfeitable assets prior to conviction would ensure forfeiture upon the subsequent conviction of the defendant. Substitution of assets would also prevent evisceration of the CCE's forfeiture provision. This procedure provides that a court may order substitution of the defendant's other available assets in the event that forfeitable assets cannot be located, are transferred to other parties, or are removed from U.S. jurisdiction. A total of 201 footnotes are provided.