The case for civil forfeiture

Abstract

PurposeThe paper is intended to illustrate the reasons why a legislature contemplating the enactment of a set of comprehensive asset forfeiture statutes to enhance the State's ability to recover the proceeds of crime should include provisions relating to in rem civil forfeiture.Design/methodology/approachThe paper reviews the law‐enforcement situations in which civil forfeiture statutes are essential to the State's ability to recover the proceeds of crime.FindingsThe paper concludes that in personam criminal forfeiture statutes, which authorize a court to impose forfeiture as an element of the defendant's sentence in a criminal case, are inadequate, by themselves, to allow the State to recover criminal proceeds, and that in rem civil forfeiture provisions must be included in a legislative scheme for it to be fully effective.Practical implicationsThe paper is intended to be of practical value and national legislatures in countries attempting to modernize the law‐enforcement tolls available to them to recover criminal proceeds both domestically and in the global economy.Originality/valueThe paper outlines the reasons why a purely in personam asset forfeiture system that relies on a criminal conviction for the recovery of criminal proceeds in inadequate, and why governments implementing asset forfeiture schemes should make civil in rem forfeiture part of the legislative program.