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ASSET FORFEITURE AND THIRD PARTY RIGHTS: THE NEED FOR FURTHER LAW REFORM

NCJ Number
143479
Journal
Duke Law Journal Volume: 1989 Issue: 5 Dated: (1990) Pages: 1254-1301
Author(s)
M Goldsmith; M J Linderman
Date Published
1990
Length
48 pages
Annotation
Asset forfeiture is increasingly used against drug traffickers and racketeers, and this legal article explains legal and policy bases for the forfeiture of third party interests in property.
Abstract
Article sections examine Federal legislation providing for the asset forfeiture of drug-related assets, the constitutionality of such legislation, pertinent Federal and State forfeiture procedures and defenses, and legislative reform of forfeiture laws. The authors contend that asset forfeiture properly supplements traditional criminal justice remedies by attacking the economic foundation of criminal enterprises but that asset forfeiture often impinges unfairly on innocent third parties. As originally enacted, Federal and State forfeiture laws generally ignored third party interests. The U.S. Supreme Court's 1974 decision in Calero-Toledo v. Pearson Yacht Leasing reinforced this trend by conferring due process protection only upon owners who had done all that could be reasonably expected to prevent the proscribed use of their property. Although Congress has since recognized the need to provide additional safeguards for innocent third parties, reforms have not been adequate. Likewise, State legislatures have failed in this regard. True reform of asset forfeiture laws requires a balanced approach that recognizes both third party rights and law enforcement concerns. A reform proposal is offered that addresses critical aspects of standing doctrine, scienter, burden of proof allocations, and pretrial asset restraints. 205 footnotes

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