POP Center Responses Asset Forfeiture Page 13
Appendix D: National District Attorneys Association Guidelines for Civil Asset Forfeiture84
- The removal of unlawfully obtained proceeds of criminal activity and the elimination of the instrumentalities used to commit crimes are the principal goals of asset forfeiture. Potential revenue must not be allowed to jeopardize the effective investigation or prosecution of criminal offenses.
- Where multiple agencies in a geographic region have jurisdiction to pursue asset forfeiture, every effort should be made to cooperate to advance the public interest.
- Every government entity with the authority to seize property should ensure that its asset forfeiture program provides for: (a) Prompt prosecutorial review of the circumstances, and propriety of the seizure; (b) Timely notice of seizure to interest holders of seized property; and (c) Expeditious resolution of ownership claims and a rapid release of property to those entitled to the return of the property.
- Absent exigent circumstances, a judicial order is advisable for all seizures of real property. When real property in residential use is sought to be forfeited, the least intrusive means that will preserve the property for forfeiture and protect the public should be employed. A notice of lis pendens or an order restraining alienation should suffice to preserve the government's interest in forfeiture pending final judicial determination of the forfeiture action.
- Every entity retaining forfeited property for official law enforcement use should ensure that the property is subject to controls consistent with those applicable to property acquired through the normal appropriations process.
- No seized property should be used without judicial authorization and/or supervision. A use order may be obtained from the court in appropriate circumstances. Otherwise the property should not be used unless the forfeiture action has been completed and title to the property has vested in the receiving agency. Forfeited property not used in an undercover capacity should be sold or added to the regular inventory of the agency. All property should be used and disposed of in a manner consistent with the use and disposition of similar property by that agency.
- The disposition of forfeited property retained by the law enforcement agency should not be determined by any person who directly supervised or exercised discretion in its forfeiture.
- Forfeiture proceeds shall be maintained in a separate fund or account subject to appropriate accounting controls and annual financial audits of all deposits and expenditures.
- Every seizing agency should maintain seized property to preserve value for successful claimants as well as the taxpayers.
- To the extent possible, civil forfeiture actions should be initiated as independent cases which are not controlled or influenced by the criminal prosecution. Prosecutors should avoid plea agreements in a criminal case which involve agreements to dismiss forfeiture proceedings. The converse is also true. Prosecutors should avoid settlements in a forfeiture case which involve concessions in a criminal proceeding.
- Every prosecutor should establish procedures to ensure expeditious resolution of ownership claims if challenges to the asset forfeiture proceeding are made and timely return of the property to the known owner or interest holders if the forfeiture action is dismissed or is unsuccessful.
- Salaries and personal benefits of any person influencing or controlling the selection, investigation, or prosecution of forfeiture cases must be managed in such a way that employment or salary does not depend upon the level of seizures or forfeitures in which they participate.
- Agency employees and their families should be prohibited from purchasing forfeited property directly or indirectly from the agency, or any property forfeited by any other agency, if the employee participated in any aspect of the investigation or litigation involving that property.
- Agencies receiving forfeiture funds should make annual budget requests based on agency funding needs without regard for anticipated or projected asset forfeiture revenues.
- Prosecutors should pursue forfeiture actions to further the remedial goals set forth above. A prosecutor should not consider any personal or political advantages or disadvantages or gains or losses that the initiation of a forfeiture action may bring to the prosecutor's office in deciding whether to initiate or dismiss a forfeiture proceeding. Nor should a prosecutor improperly consider the race, gender, social or economic status of any person in deciding whether to initiate or dismiss a forfeiture proceeding. This guideline should not be read to preclude the initiation of forfeiture proceedings, which contribute to the fulfillment of the official mission of the prosecutor's office.