ASSET FORFEITURE
Attorney General's Guidelines for Forfeiture
Issued October 1992
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(1)
Seizure of Residences
When a prosecuting agency seeks to forfeit real property in residential
use, the least intrusive means that will preserve the property for
forfeiture shall be employed. A notice of lis pendens or an order
restraining alienation should suffice to preserve the government's
interest in forfeiture pending final judicial determination of the
forfeiture action. This policy recognizes that immediate dispossession
from a residence may affect innocent individuals, that dispossession
is not always required to preserve the property for forfeiture,
and that the home is afforded special significance in American jurisprudence.
In cases in which public health, safety or welfare is at risk, full
seizure may be accomplished upon obtaining judicial sanction.
(2)
Court Approval Required for Forfeiture of Certain Property
In all cases in which real property or in which property having
a value of $10,000 or more is the subject of a forfeiture, such
forfeiture action shall proceed by a complaint filed in Superior
Court as authorized by N.J.S.A. 2C:64-3. This policy will ensure
that a public record is established for property having significant
value, when that property is subject to a forfeiture. Further, a
Superior Court Judge, as a neutral judicial officer, can adjudicate
claims by parties asserting an interest in the property and must
sanction any final disposition of the forfeiture complaint.
(3)
Forfeiture and The Underlying Criminal Offense
Forfeiture is a remedy that seeks to take unlawfully obtained proceeds
of criminal activity and to take instrumentalities used to aid in
criminal activities. In the case of proceeds, the limit of the forfeiture
remedy is defined by the prosecuting agency's ability to prove the
nexus between instrumentalities, the degree to which the instrumentality
is employed in any criminal transaction or enterprise, the importance
of the instrumentality to accomplishing the illegal end and the
nature and seriousness of the illegal activities should all be evaluated
in determining whether the forfeiture remedy should be employed
to its full limit.
(4)
Disposition of Forfeiture and Criminal Charges Not Dependent
It is legitimate to negotiate a forfeiture settlement when negotiating
a criminal disposition. However, a reasonable disposition of possible
or pending criminal charges should not be comprised to obtain a
greater forfeiture of property.
