Peter Leasure, Ph.D. candidate in criminology and criminal justice at the University of South Carolina, contributes the following guest post:

It is well known that corrupt kleptocrats often transfer enormous sums of money from their countries. As a result, there has been a growing emphasis on attempts to freeze, seize, and return stolen assets to their jurisdiction of origin. However, countries vary in the legal mechanisms they have to achieve these objectives. One common fixture of many of these legal mechanisms is the requirement that the assets (or the capital used to acquire them) be traced to a predicate offense. However, meeting this requirement can sometimes be difficult, which hinders asset recovery proceedings.

To address this problem, some jurisdictions, such as France, have adopted a burden-shifting approach. Under the relevant provisions of the French Criminal Code, officials have the burden to account for the lavish assets they have acquired once claims of corruption arise. A similar sort of burden-shifting takes place under so-called “illicit enrichment” or “unexplained wealth” statutes. Under such statutes, a government official can be criminally liable if the official has substantial assets that he or she cannot adequately explain. In other words, once the government proves that the corrupt official has assets grossly disproportionate to his or her official salary, the burden shifts to the defendant to prove that the assets have a legitimate origin. Many countries have adopted statutes of this sort. Moreover, some international anticorruption conventions, such as the Inter-American Convention Against Corruption (IACAC), expressly call for the adoption and enforcement of such laws.

The U.S. takes a different approach. The U.S. made this clear in filing a reservation to the IACAC’s illicit enrichment section (Article IX), in which it stated that the offense of illicit enrichment set forth in the convention “places the burden of proof on the defendant, which is inconsistent with the United States constitution and fundamental principles of the United States legal system.”

But is it always the case that the government bears the burden of proof in the U.S.? In fact, it is not. There are numerous examples of areas from U.S. criminal law where burdens are shifted from the government to the defendant.

The clearest way in which U.S. criminal law allows the shifting of the burden of proof to the defendant is illustrated by those statutes that allow for so-called “rebuttable presumptions” (sometimes called permissible inferences in criminal cases). Here, the law denotes some fact or set of facts as prima facie evidence of a certain element to a crime, and the burden of proof shifts to the defendant to rebut that element. Despite the baseline principle that the government is required to prove the elements of a crime beyond a reasonable doubt, U.S. criminal law sometimes allows for rebuttable presumptions. For example, the U.S. Supreme Court has upheld statutes that create a presumption that a person possessing recently stolen mail knows it was stolen, that presume that a defendant was operating an unlawful distillery based on the still’s location, and that create a presumption that a defendant possessing certain drugs knew they were imported. The most recent examples of rebuttable presumptions comes from stalking statutes, in which defendants are presumed to have acted intentionally if they continue nonconsensual contact after a formal request to stop (see here, here, here, here, here, here, and here). In all the above cases and or statutes, the creation of a rebuttable presumption shifts the burden of proof to the defendant for at least one element of an underlying crime. Such mechanisms would therefore seem inconsistent with the U.S. reservation to the IACAC’s illicit enrichment section.

In addition to the use of rebuttable presumptions, U.S. criminal law also often makes use of affirmative defenses, in which, after the prosecution makes out the basic elements of the offense, the burden shifts to the defendant to introduce evidence which, if found to be credible, will negate (or mitigate) criminal liability. (Examples of affirmative defenses where the burden falls on the defendant in many U.S. jurisdictions include the defenses of insanity, alibi, and discriminatory enforcement of the law.)

This short review of rebuttable presumption and affirmative defense practices in the U.S. should certainly be cause for one to question the U.S.’s steadfast opposition to placing any burden upon the defendant in illicit enrichment cases. If the U.S. can shift burdens for those accused of stalking, drug possession, firearm possession, or those trying to present an insanity defense, a burden can certainly be shifted to a defendant who is skilled in the intricate use of shell companies and other means of disguising ownership. In fact, I would argue that such a burden shift is most appropriate in the later. I therefore conclude that the current U.S. asset forfeiture procedures should be reformed to incorporate a burden-shifting mechanism, and the U.S. should reconsider its objection to making illicit enrichment a criminal offense, as called for by the IACAC.