Public vs. Private Asset Forfeiture: Comparing Government and Third-Party Seizures

By Brock Benjamin
Founding Attorney

Asset forfeiture is the legal process which allows the government to seize property they believe is connected to criminal activity. While this process was designed, in theory, to disrupt criminal enterprises and strip individuals of the proceeds of criminal acts, in practice it is largely unchecked and can have a devastating impact on those accused. Law enforcement does little to distinguish what assets are “criminally tainted” and which were legitimately obtained. They can physically seize items and freeze financial accounts, leaving the accused with few options to fight back. However, with the help of an experienced El Paso asset forfeiture defense attorney, positive outcomes are possible.

Understanding Asset Forfeiture

Asset forfeiture is broadly categorized into two types: public asset forfeiture and private asset forfeiture. Public asset forfeiture entails a government entity, such as a local, state, or federal law enforcement agency, seizing assets that they have determined are related to criminal activity. On the other hand, private asset forfeiture occurs when a third-party, often hired by the government, seizing assets on their behalf. While each accomplishes the same result, they differ in terms of motivations and process. These discrepancies and the complex legal landscape surrounding asset forfeiture law can leave individuals facing asset forfeiture at a disadvantage, especially without the guidance of an experienced Texas and New Mexico asset forfeiture lawyer.

Public Asset Forfeiture: The Government’s Largely Unchecked Power

Public asset forfeiture is a tool law enforcement uses to seize assets they believe are connected to or the proceeds of a crime. Per Texas, New Mexico, and federal law, the government can seize physical property, bank accounts, and more as long as it can be tied to a crime. This legal framework was put in place to dismantle criminal enterprises, disrupt illegal organizations, and ensure that nobody financially benefits from crime. 

While public asset forfeiture seems reasonable on the surface, there’s little oversight on the part of the government, and there’s not clear delineation between what can and cannot be considered associated with a crime. The process typically involves a court proceeding where the government demonstrates a link between the seized assets and criminal activity, where the court is tasked with safeguarding an individual’s right from unjust seizure. However, in practice, the burden of proof is often turned on the property owner, leaving the accused having to prove their innocence to be reunited with their rightful property.

In an even more convoluted process, sometimes asset forfeiture can occur without criminal charges ever being filed, a mechanism known as civil asset forfeiture. Seizing assets relating to a crime without ever bringing charges for that crime may seem counterintuitive – because it is. This process is morally questionable, giving law enforcement liberal authority to seize assets they believe are tied to a crime when they don’t even have the evidence to charge the accused with a crime in the first place. This leaves individuals – innocent because they haven’t been proven guilty, or even charged with a crime – fighting to reclaim their property.

Private Asset Forfeiture: A Perverse Incentive

Private asset forfeiture involves the government outsourcing the seizure of assets to third-party entities, often referred to as asset forfeiture contractors. These contractors, however, come with a price, which can blur the morality of the asset forfeiture process. Asset forfeiture contractors aren’t usually paid by the hour, but are paid like a bounty hunter, with a percentage of the seized assets or their proceeds. This motivates the contractors to seize as much as they possibly can, even tying assets to crime very tangentially, to maximize their own profits. They’re in the business of making money, not ensuring that the accused’s constitutional rights are upheld. This creates a financial incentive for contractors to aggressively pursue forfeitures to the maximum, leading to potential abuses of power at the expense of the individual rights enshrined in the United States Constitution.

Defending Against Asset Forfeiture

Regardless of whether you’re facing private or public asset forfeiture, or whether that forfeiture is occurring on a criminal or civil level, it’s essential to seek aggressive representation from an experienced attorney to ensure your legal rights are protected. There are many avenues that can be pursued to present a compelling defense to asset forfeiture on a Texas, New Mexico, or federal level, but it’s critical to act quickly and proactively.

El Paso Asset Forfeiture Defense Attorney

If you’re facing asset forfeiture, you need a seasoned criminal defense attorney who is prepared to fight aggressively for your rights. The sooner you secure representation the more likely you will be reunited with your assets, and the better chances of a positive outcome in your case.

Based in El Paso but proudly serving clients across Texas and New Mexico, the Benjamin Law Firm offers comprehensive criminal defense, civil litigation, and aviation law services. With near two decades of experience in the field, what sets the Benjamin Law Firm apart is the expertise that founding partner Brock Morgan Benjamin brings to every case. Attorney Benjamin is one of very few attorneys who truly specializes in criminal law, as he is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Many Texas attorneys may practice criminal law, but few can say they are an expert in criminal law like Attorney Benjamin. As a former prosecutor, Attorney Benjamin also has a unique perspective, providing insider insight into the tricks and tactics that law enforcement use. He uses that insight and experience to defend his clients zealously and relentlessly.

Contact us or call us at (915)-221-7462 today so we can help stop this asset forfeiture in its tracks. También podemos ayudarte en español.

About the Author
Brock Benjamin is board-certified in Criminal Law by the Texas Board of Legal Specialization.  His practice is primarily state and federal criminal law and appeals.Brock 

Posted in: Criminal Defense