Once a crime is identified, the government may seize any property flowing from the activity. In some cases, the government may seize property in lieu of provable criminal proceeds. Statutory innocent owner defenses provide a check on the seizure power, although this burden lies with the owner, not the government. Tools or Instrumentalities Used in Commission of a Crime Property used in the commission of a crime, including vehicles and real estate. In some cases, the innocence of the owner may not be a defense, although Constitution limitations, such as the Eighth Amendment's Excessive Fines Clause, may apply.
Criminal forfeiture is a punitive action by the government against the offender.
Typically, it occurs as part of a sentence following a conviction. Depending on the crime, U.S. Customs procedures from Title 19 may also control. The nature of the proceeding assures that the defendant is protected by the procedural rights embodied in the Fourth and Fifth Amendment. The property must be identified in the indictment in order to serve notice to the defendant, and opportunity must be given to contest the forfeiture. Furthermore, the burden shifts to the defendant once the government shows that the defendant acquired the property around the time of the crime, and no other likely source existed.