This paper discusses civil and criminal asset forfeiture as a tool in prosecuting cases of human trafficking and related crimes.
Four key points are emphasized in guiding prosecutors in obtaining assets of human traffickers. First, prosecutors should determine which theory of asset forfeiture will best fit with the facts of the case. Civil and criminal asset forfeiture are different legal tools with pros and cons to consider. Civil asset forfeiture is not dependent on a conviction; often it can be pursued even when there is no criminal case pending. The standard of proof is lower compared to criminal asset forfeiture. Criminal asset forfeiture, on the other hand, can only be obtained following a conviction, and it is sought during sentencing or through a separate forfeiture hearing that requires the prosecutor to show that the property to be forfeited as part of the specific criminal offense. A second key point is the importance of immediately seizing property and assets believed to be potentially related to the profits of the criminal activity being investigated. Prosecutors should collaborate with their offices' financial crimes investigators and prosecutors in adopting proper procedures for identifying and seizing property. A third key issue is the selection of criminal charges, particularly in jurisdictions that do not provide for forfeiture under the human trafficking laws. Since there are typically a number of criminal offenses committed in association with human trafficking, the selection of charges should take into account those offenses likely to facilitate successful asset forfeiture proceedings. Fourth, when appropriate, State and local authorities should consider collaborating with Federal investigators on human trafficking cases, which may allow for the application of Federal asset forfeiture laws, even when the case is not prosecuted federally. 33 notes
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Strategies in Brief, Issue 20, September 2013