Forfeiture is the process by which the government can take property that was either used to commit a crime or was the fruit of a crime. For example, if a person robs a bank and uses a car to flee the scene, both the car and the money obtained from the robbery are subject to forfeiture. Innocent third party owners of property have the ability to intervene in a forfeiture proceeding to protect their right to the property. In the example, if an innocent third party owned the car, the third party would have the right to contest the forfeiture. Although restitution can overlap with property subject to forfeiture, the concepts are distinct, and an individual can be subject to both restitution and forfeiture.
Forfeiture can be a civil or criminal proceeding. Civil proceedings are in rem, that is the action is against the property and not a particular person. Criminal proceedings are in personam, meaning the action is against a person; if the person is convicted of the crime, their property can be forfeited. In a criminal proceeding, the property does not necessarily have to be connected to the crime as the government can obtain a money judgement or substitute assets if the property associated with the crime is unavailable.
Forfeiture in the State of Florida is governed by the Florida Contraband Forfeiture Act, Fla. Stat. § 932.701 through 932.706. The purpose is to divest individuals of the proceeds of crimes and to dismantle criminal organizations. Property is subject to forfeiture if it has a nexus to a felony, was used as an instrumentality in a felony, or was acquired from illegal contact.
There are several statutes that govern forfeiture in federal cases. Criminal forfeiture is not necessarily permitted for all offenses, although the more common offenses such as fraud and narcotics carry forfeiture penalties.
As a general rule, if property is seized as part of an ongoing federal criminal investigation and the criminal defendants are being prosecuted in federal court—or it is anticipated that a federal prosecution will be pursued—the forfeiture action will be commenced administratively by a federal agency or pursued in federal court regardless of whether a local, state, or federal agency made the seizure. In cases where administrative forfeiture is possible under 19 U.S.C. § 1607, but the Government has elected for whatever reason to by-pass the administrative forfeiture process, the U.S. Attorney may file a civil or criminal action for the forfeiture of the property within 150 days of the seizure of the property. This reflects the total time that the Government would have had to commence such an action if the Government had chosen to proceed in the normal way: 60 days for the commencement of an administrative forfeiture proceeding plus 90 days to file a civil forfeiture complaint or to include the property in a criminal indictment.