Asset forfeiture has a long and storied history in Anglo-Saxon law, beginning hundreds of years ago in the common law of England and developing in the United States into a complex body of federal statutes. For purposes of this report, "asset forfeiture" is the process of confiscating either property or money from a person because it is illegal to possess (contraband), constitutes the proceeds of a crime, or was used to facilitate a crime. Asset forfeiture comes in two forms, civil and criminal, each with its own set of intricate rules. In civil asset forfeiture, the government proceeds against the offending property, not the property owner, in what is known as an in rem proceeding (which results in awkward case captions such as United States v. $52,000.00, More or Less, in United States Currency ). In civil forfeiture cases, the guilt of the property owner is not in question. In fact, in many cases, there is no criminal prosecution at all. Rather, these cases turn on whether the property was sufficiently connected to a federal crime. Because these are civil proceedings, many of the constitutional safeguards accorded to criminal defendants in the Bill of Rights have been held not to apply. Criminal forfeiture, on the other hand, is an in personam proceeding that follows a criminal prosecution. The defendant does not forfeit his property unless he is convicted of a qualifying crime. While civil asset forfeiture began with the very first Congress, it took on a much greater role during the War on Drugs in the 1970s and 1980s. The efficacy of the program, however, soon created concerns of overreach, prompting Congress to take up forfeiture reform in the 1990s. After considerable hearings and debate, Congress enacted the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the first major overhaul in federal forfeiture law in 200 years. While this law brought about significant reform to federal forfeiture policy and procedures, some have questioned whether CAFRA went far enough to rein in what they characterize as overzealous police forfeiture tactics. Others have questioned the legitimacy of the institution of civil forfeiture itself. The Department of Justice (DOJ), on the other hand, has asserted that asset forfeiture plays a "critical and key role in disrupting and dismantling illegal enterprises, depriving criminals of the proceeds of illegal activity, deterring crime, and restoring property to victims." Concerns about the current legal framework are evidenced in new reports of possible police misuse of federal forfeiture laws. Contemporaneously, a new round of reform proposals have been introduced, including two identical bills introduced in the 114 th Congress, the Fifth Amendment Integrity Restoration Act of 2015, or FAIR Act ( S. 255 and H.R. 540 ), and the Civil Asset Forfeiture Reform Act of 2014 ( H.R. 5212 ), introduced in the 113 th Congress. With these proposals in mind, this report will provide an overview of select legal issues and reforms surrounding asset forfeiture, including the burden of proof standard and innocent owner defense in civil asset forfeiture cases, access to counsel in both civil and criminal forfeiture cases (including a discussion of the 2014 Supreme Court asset forfeiture decision Kaley v. United States ), allocation of profits from confiscated assets, and DOJ's equitable sharing program. Before addressing these issues, a brief history and overview of civil and criminal asset forfeiture will put these legal issues and reforms into context. Asset forfeiture comes in two forms: civil and criminal. The most significant legal distinction surrounding civil asset forfeiture is the principle that the defendant in the case is property—whether a vehicle, a house, or money—rather than a person. This "legal fiction" that property should be "held guilty and condemned" allows the government to proceed against people's property without ever bringing charges against them. This practice can be traced back to English law, which permitted the forfeiture of property that killed a person (known as a deodand), forfeitures at common law for the property of those convicted of a felony or treason, and statutory forfeitures of offending property in violation of customs laws. Whatever the original rationale, the concept of forfeiture was adopted in American customs laws beginning with the first Congress. It applied to ships and cargoes in violation of customs laws, vessels used to deliver slaves to other countries, and vessels used to deliver slaves to the United States. While Congress enacted various civil forfeiture statutes over the subsequent 150 years, this practice became a major part of federal law and federal law enforcement policy during the War on Drugs, beginning with the Comprehensive Drug Abuse Prevention and Control Act of 1970. This law permitted the confiscation of any substances manufactured or distributed in violation of federal drug laws and any conveyances—such as aircraft, vehicles, and vessels—used to facilitate the transportation and sale of these drugs. In 1978, civil forfeiture was extended to include the forfeiture of money, negotiable instruments, and other proceeds connected to a drug transaction. In 1984, Congress added real property to the list of forfeitable property. While drug crimes may constitute the bulk of federal forfeitures, federal law permits forfeitures in a host of other areas. One of the major complaints of these civil asset forfeiture laws was how the procedural rules generally favored the government. The government was not required to prove guilt of the property or its owner beyond a reasonable doubt, nor even by a preponderance of the evidence. Instead, probable cause to believe that the property was connected to the prescribed federal crimes was enough to confiscate the property. If the government made this showing, the burden would shift to the property owner to prove that the property was not implicated in the alleged crime. Additionally, claimants had to file a bond with the court in order to contest a forfeiture of their property. Although these statutes were a favored tool during the zenith of the War on Drugs, in the 1990s, Congress took up various legislative proposals to reform the civil forfeiture system. After years of legislative debate, Congress enacted the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). This legislation was not a comprehensive overhaul of the asset forfeiture system based upon "first principles" but instead constituted a set of discrete legislative fixes. These changes included shifting the burden of proof to the government and raising it to the preponderance of the evidence standard, creating a uniform innocent owner defense, eliminating the bond requirement, imposing stricter filing deadlines for the government and the claimant, creating a statutory hardship provision, and authorizing appointment of counsel in certain cases. The civil forfeiture process generally begins when the government seizes someone's property that was connected to a criminal offense. At that point, the government must provide notice to any interested persons. If no one makes a claim on the property, the property can be forfeited under a process known as "administrative" or "nonjudicial" forfeiture without the government having to file a case in district court (so long as it meets the statutory class of property). The rationale for this streamlined process is that requiring the government to obtain a default judgment for uncontested forfeitures is too time consuming and expensive. If anyone makes a claim to the property, however, or if the property does not fall within the statutorily defined categories of property subject to administrative forfeiture, the case must be referred to the U.S. attorney to be handled in a judicial forfeiture proceeding. Prior to the passage of CAFRA, administrative forfeitures were primarily governed by customs laws. With CAFRA, Congress consolidated many of the procedural rules for administrative forfeitures in 18 U.S.C. § 983; however, the customs laws still apply as a gap filler when the new rules are silent on a particular issue. Because CAFRA does not delineate what categories of property are subject to administrative forfeiture, this facet of forfeiture is still governed by customs laws. Under 19 U.S.C. § 1607, the government can use the administrative process to forfeit any property that does not exceed $500,000; any vehicle or other conveyance that was involved in a drug crime, regardless of value; and all monetary instruments, including U.S. currency, regardless of value. Real property, such as a home or business, is not subject to administrative forfeiture. Under pre-CAFRA law, there were no strict deadlines governing when the government had to file an administrative or judicial forfeiture claim. The law required only that cases be commenced and prosecuted "without delay." CAFRA altered this by placing time restrictions on both the government and claimants. It requires that "in any nonjudicial civil forfeiture, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure." This time limit is extended to 90 days in "adoptive forfeiture" cases where the property was seized by a state or local law enforcement agency and turned over to a federal law enforcement agency. If the government fails to provide notice of the seizure in accordance with these rules and fails to get an extension, it must return the property to the owner "without prejudice to the right of the Government to commence a forfeiture proceeding at a later time." DOJ reads this provision, and the majority of courts have accepted, that even if DOJ misses the deadline, it may still initiate a judicial or criminal forfeiture without first having to return the property. If notice is sent to an interested party, he has 35 days after the date the letter is mailed to file a claim. If the letter is not received, he has 30 days after the date of final publication of the notice of seizure. Filing such a claim is where the property owner gets his or her "day in court." A claim must identify the specific property being claimed and the claimant's interest in the property and must be made under oath, subject to penalty of perjury.