New Mexico recently passed a law that essentially abolishes civil forfeitures. This action is the result of countless abuses by law enforcement of civil forfeitures to take money, homes, cars and other assets from law abiding citizens. The U.S. Department of Justice and the IRS have also recognized the abuses by issuing policy statements intended to curb civil forfeitures.
The press has reported many stories of people who have never been arrested, charged or convicted of any crimes but have had their life savings seized and forfeited. Police and prosecutors argue that civil forfeiture is justified because it deprives criminals of their ill-gotten gains. Unfortunately, civil forfeitures have also been used by law enforcement to pad their budgets.
Law enforcement’s goal of depriving a person of ill-gotten gains can be achieved by using criminal forfeiture laws. In a criminal case, forfeiture of ill-gotten gains occurs without harming the innocent because the person is first charged with a crime. The prosecutor must then prove beyond a reasonable doubt that the defendant committed the crime charged before the property is subjected to forfeiture. Forfeiture of property under the criminal laws preserves the rights protected in the U.S. Constitution. Law enforcement’s use of civil forfeitures undermines the fundamental fairness of justice that Americans have a right to demand.
One of the more sinister abuses of civil forfeiture involves the crime of structuring bank deposits. While there is nothing wrong with making cash deposits or withdrawals, it is against the law to structure the deposits or withdrawals to avoid the bank’s requirement to file a Currency Transaction Report (CTR). The bank must file a CTR for a cash transaction over $10,000.00. Even though a person may have no knowledge that structuring is a crime, he may find his bank account seized by the government for making several smaller deposits rather than one larger deposit over $10,000.
The recent announcement by the Department of Justice and the IRS aimed at correcting the abuses of civil forfeitures must be taken with a grain of salt. Policies issued by the Department of Justice and IRS are subject to interpretation by local agents and prosecutors. Abuses often continue in spite of policy announcements. It’s time to follow New Mexico’s answer to the problem of abusive civil forfeitures – repeal the civil forfeiture laws.
Law Offices of Mark L. Horwitz, P.A.
17 East Pine St.
Orlando, FL 32801