New Jersey is among the worst states in the country when it comes to civil forfeiture laws. Many people incorrectly assume that civil forfeiture applies to only an accused or a criminal defendant’s property. However, civil forfeiture can occur with any type of property which is simply allegedly tied to criminal activity. The owner does not have to be actually charged with a crime in order to have their property taken them. Also, in a civil forfeiture proceeding where the state is represented by the county prosecutors, there is a lower standard of proof which does not require them to prove guilt ‘beyond a reasonable doubt.’ New Jersey has consistently ranked as one of the least transparent states when it comes to disclosing how much they have actually confiscated, and has consistently been given poor marks by independent agencies which monitor forfeiture activity. For example, in 2015, the highly respected Institute for Justice gave New Jersey a D-, the lowest grade possible, when it analyzed the laws and the growth of civil forfeiture proceedings around the United States.
What is a Civil Forfeiture Proceeding?
The New Jersey forfeiture law, which is codified under N.J.S.A. 2C:64-1, states that the following classes of property are subject to seizure:
1. Any proceeds from any illegal activity, for example, money from dealing drugs;
2. Property that is integrated into the illegal activity, for example, money used to finance illegal activity, and;
3. Property used in the commission of the crime, for example, a vehicle which is transporting drugs.
The state of New Jersey has 90 days after the forfeiture to file a civil suit and explain why the property is believed to fall within one of the three catagories above. The burden of proof is on the state to prove or establish through the lesser standard of ‘preponderence of the evidence’ that the property is connected to the defendant and/or the criminal act. Here is where it gets interesting. Under a preponderance of the evidence standard the state need only prove that it was more likely than not that the property is subject to forfeiture, and can proceed indepdently of any criminal proceedings and even continue the civil forfeiture proceeding if the defendant’s charges are dismissed or they are found not guilty after trial. The problem here is that a defendant can be placed into a financial stanglehold, with no ability to retain private counsel or support themselves, while the state seizes anything and everything it reasonably believes is related to the criminal activity. Even more frightening, any property which relates to the accused owned by a third party is still subject to forfeiture and the burden is on the state to prove that they were not aware of the criminal activity. However, under the lower standard in civil proceedings, the state need only prove it was more likely than not that the third party was aware. Thus, the ‘they should have known’ argument can result in a third party losing everything.
What are the differences between a civil forfeiture and a criminal proceeding?
The proceedings are two separate matters handled by two different prosecutors from the same office. Supposedly they are not keeping each other informed of their respective matters, however, that is beyond unlikely. Aside from the standards for the burdens of proof mentoined above, a civil proceeding operates under different rules and will be handled by different judges. It is highly recommended that the attorney handling the criminal matter also handle the civil matter since the issues will be similar.
There is no question that a civil forfeiture can result in financial ruin. It is important to have an attorney that is experienced in both civil and criminal proceedings. Whether you are the defendant in the criminal matter or an innocent third party in the civil matter, knowing and understanding the subtle differences in the law can mean the difference between keeping your home or losing it to the state.
Michael Orozco is Of Counsel with the firm, to contact him click here.
