A couple weeks back, Rick’s post on the US DOJ Kleptocracy Initiative’s settlement in the Obiang case prompted an interesting exchange among several contributors to this blog (including me) about the use of civil forfeiture proceedings to seize assets–suspected of being the proceeds of corruption or other illicit activity–without a prior criminal conviction. I recently had the opportunity to read the Stolen Asset Recovery Initiative (StAR)’s excellent new report, Few and Far, about recent developments in the asset recover field, and this report prompted me to reflect further on this issue. The Few and Far report is very positive about civil forfeiture, and recommends substantially expanding its use. To quote the report:

Both developed and developing countries need to ensure that they have a broad range of mechanisms in place, such as the ability[y] … to confiscate [assets] in the absence of a conviction. (p. 3)

Confiscation in the absence of a conviction (NCB confiscation) continues to be an effective mechanism for freezing and confiscating assets…. [H]owever, most OECD members have yet to adopt laws permitting the confiscation of assets in the absence of a conviction. (p. 43)

I want to use the Few and Far report to raise again an issue that I noted in response to Rick’s post on the Obiang case: I’m deeply conflicted about the use of non-conviction-based (NCB) civil forfeiture proceedings, and I think that perhaps the anticorruption community should engage in a bit more reflection about this mechanism, and how to ensure it’s not abused.

To be clear, I am not opposed to NCB forfeiture. Indeed, in cases like Obiang, and several of the others discussed in the StAR report, my instinct is to cheer on the civil forfeiture actions and to advocate their more widespread use. And civil forfeiture is an especially attractive tool in dealing with kleptocrats from systemically corrupt countries, because in those cases the likelihood of a domestic criminal conviction may be vanishingly small, even when it seems quite clear that the assets in question are almost certainly the product of corruption.

So why my queasiness? Mainly because the domestic experience in the US with civil forfeiture actions is deeply troubling. (This may be true in other countries as well, but I’m not sufficiently familiar with the practice elsewhere, so I’ll focus on the US.) As extensive exposes in outlets like the Washington Post and the New Yorker have documented, in the US there has been widespread abuse of civil forfeiture proceedings, particularly by local police departments, leading to numerous instances in which possibly innocent people had lost their cars, homes, or large sums of cash. (The satirist John Oliver highlighted–and skewered–this troublesome trend in a recent segment of his comedy program.) The essence of the problem is that most legal systems require a conviction–proof beyond a reasonable doubt–before imposing criminal punishments. And they do this for good reasons, notwithstanding the seriousness of the crimes alleged. Civil forfeiture proceedings seem to do an end run around that fundamental safeguard against government overreaching by adopting the legal fiction that the action is against the property rather than the person, and so only needs to be proved by a preponderance of the evidence, rather than beyond a reasonable doubt.

So I do think this is a bigger worry than many in the anticorruption community seem to have acknowledged. Yes, corruption is a huge problem–just like terrorism, drug trafficking, and other serious criminal conduct. But whenever we hear someone say–in these or other contexts–that the crime is so egregious that we should do away with (or find clever ways to circumvent) traditional procedural protections for the accused, we should at the very least stop and reflect.

All that said, I do think that the uses of civil forfeiture that StAR is advocating in Few and Far are perhaps easier to justify than the kinds of civil forfeiture mechanisms that have been abused in the US. Let me run through what I think are the biggest distinctions, but then also close on a cautionary note.

First of all, the risk of abuse is much less in the international asset seizure context than in domestic civil forfeiture actions. The biggest abuses that have been reported in the US generally involve local police departments, which are allowed to keep any property they seize to add to the department’s budget. International asset seizures are different along two dimensions:

• First, the actions are much more centralized, and pursued by trained lawyers in the national government (for example, the DOJ Kleptocracy Initiative), operating under the close supervision of senior officials. That, coupled with the fact that these cases are high profile and politically sensitive, means that some of the sloppiness and arbitrariness documented in local US police departments is much less likely.
• Second, many of the abuses at the local level in the US may derive from the fact that the local departments can keep the seized property for themselves, and the amounts of money involved are not trivial when compared to the departments’ overall budgets. This is much less likely to be a problem for national-level seizures of illicit assets, for two reasons: (1) In many cases, including, for example, the Obiang settlement, the seized assets are repatriated (if not directly to the source country’s government then through a charity or NGO); (2) even in those cases where the national government keeps the proceeds, the amounts involved are likely to be small enough, and the cases rare enough, that they are not likely to severely distort the judgment and incentives of the key government decision-makers.

On the other side of the ledger, the need for NCB-based forfeitures in the international asset recovery context is probably much more pressing than in the domestic context, because the possibility of obtaining a genuine conviction in the latter context is generally more realistic. If the cops pull over a motorist and find a large quantity of cash in the car, and suspect that it’s drug money, it doesn’t seem like too much to ask that a prosecutor prove before a court that it is, in fact, drug money before allowing the government to take it away. If the government can’t prove it, tough. When we’re dealing with kleptocrats from systemically corrupt countries tough, then–as noted above–part of the problem is that it may simply not be realistic to obtain a conviction, given the lack of cooperation from the host country.

Putting those points together, I don’t think I’m necessarily being inconsistent when I join StAR in calling for more aggressive use of NCB forfeiture in international corruption cases, and join John Oliver in calling for drastic limitations (though not necessarily elimination) of NCB forfeiture domestically. But I’m still not 100% comfortable with that position, and part of the discomfort arises because, even though cases like Obiang’s seem like easy cases for NCB forfeiture, easy cases often make bad law. What happens when the accounts belong not to a kleptocrat or his family members, but, say, to Russian oligarchs known to be enemies of the Putin regime? Or when we’re not talking about kleptocrats at the highest levels, but mid-level officials who may be corrupt but where the evidence is less clear? I do think the problem is potentially serious, and one worth thinking about carefully. After all, our commitment to fighting corruption and to seizing kleptocrats’ loot is in large measure about our desire to protect the rule of law — so we should be mindful that we do not sacrifice rule of law values in the process.