State and Federal Forfeiture of Property Used in Criminal Activity
| Publication year | 1982 |
| Pages | 2597 |
1982, October, Pg. 2597. State and Federal Forfeiture of Property Used in Criminal Activity
Fear of incarceration may deter some criminal activity, but fear of forfeiture of valuable property may be an even greater deterrent---if one accepts the notion that greed motivates some criminal behavior.
Although it has been said that forfeitures are not favored at law and that statutes authorizing them must be strictly construed,(fn1) forfeitures are often quite harsh in contemporary practice.
For example, property may be subject to forfeiture even though its owner was innocent of wrongdoing, as that term is normally used.(fn2) In a recent case the 10th Circuit Court stated:
Innocence, in and of itself, is an insufficient defense to forfeiture. Innocence, coupled with an owner's reasonable actions to prevent the proscribed use of his property could, possibly, prevent forfeiture.
[The aircraft's owner] failed to establish that he exercised due care in entrusting another with possession of his property. Under these circumstances, the forfeiture of the aircraft was proper, and not in derogation of [his] 5th Amendment rights.(fn3)
It has been suggested that forfeiture statutes are unconstitutional. However, these suggestions have generally been rejected. Forfeiture statutes have successfully withstood allegations that they unconstitutionally deny equal protection, impose cruel and unusual punishment and subject persons to double jeopardy.(fn4)
Forfeiture statutes therefore provide government prosecutors with potent weapons with which to combat criminal activity. Forfeiture certainly could take the profit out of criminal activity and thereby deter some people from engaging in it.
It seems appropriate to assume that most Colorado lawyers are interested in gaining some familiarity with Colorado laws authorizing forfeiture. It is the purpose of this section to provide an overview of the applicable Colorado forfeiture statutes. Federal statutes authorizing forfeiture are discussed in the second section of this article.
A forfeiture is an action against property seeking transfer of ownership to the government, usually on the theory that one should not obtain the fruit of one's criminal activity.(fn5) It is a statutory proceeding and does not require a prior conviction.(fn6)
Unfortunately, the practitioner cannot be assured that all applicable Colorado forfeiture statutes are discussed in this article because they are not that easy to locate. For example, forfeiture of property used in the commission of a Class 1 public nuisance is possible under the authority found in C.R.S. 1973, § 13-16-314; however, the index to Colorado Revised Statutes does not refer to that statute in its "forfeiture" section. It is therefore possible (hopefully not probable) that some forfeiture provisions may have escaped this author's notice.
Before discussing the known statutory provisions, it should be noted that the Colorado Constitution states that, "no conviction can work . . . forfeiture of estate ..." and, that there is at least one Colorado statute authorizing forfeiture upon conviction.(fn7) One can only speculate whether this statute is constitutional (yet there does not appear to be any harm in speculation)---the applicable constitutional provision, which has never been interpreted, uses the term "estate." This is not limited to postmortem property interests but also includes what one owns during one's life.(fn8) What about life estates and marital estates? It is therefore possible that state statutes authorizing forfeiture of property upon conviction violate the Colorado Constitution.
On the other hand, forfeiture can occur without the necessity of a prior conviction.(fn9) Also, as discussed below, some Colorado forfeiture statutes do not require convictions for their application. The courts may therefore conclude that the Colorado Constitution does not apply to those statutes because forfeiture under them does not result from a conviction or, in the words of the Constitution, is not "worked" by a conviction.
Forfeiture of property is available pursuant to the public nuisance provisions of C.R.S. 1973, § 16-13-301 et
seq., and the recently enacted Colorado Organized Crime Control Act (1981), C.R.S. 1973, § 18-17-101, et seq.
In enacting the Colorado Organized Crime Control Act ("Act") the General Assembly expressly found that organized crime derives a major portion of its power through money procured from racketeering, and that money and power derived from racketeering is used to infiltrate and corrupt legitimate business and labor organizations. The General Assembly also expressly found that traditional legal remedies were inadequate and that new remedies were necessary in order to combat organized crime.(fn10)
The Act specifically prohibits the acquisition of real property with proceeds derived from a "pattern of racketeering activity." District courts are authorized to enjoin prohibited activities through several devices, including civil forfeiture of property.(fn11)
"Any aggrieved person" [which is not defined] as well as the Attorney General or a district attorney, may seek civil remedies including forfeiture. A person injured by a "pattern of racketeering activity" may also seek treble damages, attorney's fees and reasonable investigation and litigation costs. Such an injured party has a claim to forfeited property superior to that of the State.(fn12)
A person convicted of violating the Act is not only subject to criminal penalties, but also to forfeiture of property acquired in violation of prohibited activities.(fn13) The provisions of the Act, as of this writing, have not been subject to appellate review.
The provisions of C.R.S. 1973, § 16-13-301, et seq. provide for abatement of public nuisances, of which there are four classes.(fn14) All realty (including buildings) and all vehicles used in the commission of any felony are Class 1 public nuisances. The fixtures and contents of such property and the personalty used in furtherance of any Class 1 public nuisance is subject to forfeiture. In addition to...
To continue reading
Request your trial