Confiscation
Confiscation
Legislation enabling courts to confiscate or remove illegal gain has grown rapidly in a wide range of both civil and common-law countries. The concept is not new: forfeiture was part of Roman law as early as 451 BCE and was also used by the ancient Greeks. In more recent times, confiscation has usually been introduced as a part of the fight against organized crime and drugs, either directly in drugs legislation or in a penal code and applicable to all kinds of crimes. In 1970 the U.S. Congress passed the first criminal forfeiture statutes in U.S. history. In the United Kingdom forfeiture was introduced in the Drug Trafficking Offences Act 1986 and has been subsequently strengthened and extended to other areas of crime via the Criminal Justice Act 1988 and 1993, the Drug Trafficking Act 1994, and the Proceeds of Crime Act 2002. In other countries the sanction of removing illegal gain has been introduced for a wide array of crimes, extending even to environmental statutes.
The power of courts to impose this sanction varies substantially across areas of the law and also across jurisdictions. In some countries, such as the United States, the proceeds of drug trafficking can be forfeited under civil powers, independent of any criminal proceedings. Although in the United States forfeiture is technically considered to be a civil sanction, the Supreme Court has recognized that forfeiture constitutes a significant punishment and is thus subject to constitutional limitations under the Eighth Amendment. In other countries, such as the United Kingdom, the confiscation of such assets is only possible as a subsidiary part of criminal proceedings.
The goal of removing illegal gain, according to legal doctrine, is to achieve restitutio ad integrum. This means that criminals should be put back in the situation in which they would have been had the crime not been committed. This corresponds to the general notion that crime should not pay. This restitutive goal may not be fully achieved with the imposition of other sanctions, such as fines or imprisonment: A fine may well be much lower than the profit from an offense, and imprisonment is no guarantee that the offender will be left without the profits of a crime. For offenses such as theft, the offender can be required to return stolen goods or to pay compensation to the victim of the crime. But for so-called “victimless crimes” such as environmental pollution or drug trafficking, the harm caused by crime is experienced by society at large rather than by identifiable victims, in which case the confiscation of illegal gain replaces individual compensation.
The goal of providing restitution through confiscation also has important consequences for legal character. Confiscation is not usually considered a criminal sanction, as is a fine or imprisonment, but a measure. (There are exceptions to this, however; in France confiscation may be a supplement to a penal sanction or, in some cases, even the primary sanction.) Measures are designed to be corrective or to provide restitution and aim either at protecting society or at restoring a loss. Therefore criminal sanctions are usually said to have a punitive goal, whereas this is not the case for measures.
Confiscation occurs after a crime has been committed and thus has little to add by way of deterrence, assuming the courts are applying efficient sanctions that already take illegal gain into account. But if the courts have been applying fines that exclude illegal gain, then a role for confiscation may emerge. Bowles, Faure, and Garoupa (2000, 2005) have argued that there are certain types of offense for which the removal of illegal gain provides a punishment superior to more traditional sanctions. Offenses committed sequentially and where the victims are unaware of offenses being committed may be very difficult (and costly) to detect. For example, a drug dealer may accumulate wealth from a large number of small illegal transactions, or a polluting firm may discharge illegal effluent over a prolonged interval. In such instances it is impracticable to prosecute each illegal action individually. Confiscation can be a way to tie sanctions more closely to an offender’s cumulative ill-gotten gains and to increase the scale of sanctions. This can help compensate for weak deterrence in crimes such as illegal trading, where conviction probabilities are low and the fines imposed are low in relation to the potential gains.
SEE ALSO Violence, Role in Resource Allocation
BIBLIOGRAPHY
Bowles, Roger, Michael Faure, and Nuno Garoupa. 2000. Economic Analysis of the Removal of Illegal Gain. International Review of Law and Economics 20: 537–549.
Bowles, Roger, Michael Faure, and Nuno Garoupa. 2005. Forfeiture of Illegal Gain: An Economic Perspective. Oxford Journal of Legal Studies 25 (2): 275–295.
Roger Bowles
Michael Faure
Nuno Garoupa