Comparative Evaluation of Unexplained Wealth Orders

• NCJ Number: 237163
• Date Published: October 2011
• Length: 844 pages
• Grant Number(s): 2010F_10078
• Agencies: NIJ-Sponsored
• Publication Type: Legislation/Policy Analysis

Annotation

This report informs practitioners and policymakers about unexplained wealth orders (UWOs) as an alternative to existing forfeiture and confiscation regimes, describes their key features, assesses their application, and evaluates their effectiveness in Australia and Ireland; in addition, the report identifies a number of issues policymakers should consider when contemplating introduction of UWOs in the United States.

Abstract

The primary objective of a UWO is to deprive criminals of the acquisitions or benefits of unlawful activities; however, by using UWOs, the prosecution is not required to first prove a criminal charge, as is the case with conviction-based forfeiture. In addition, it is not required to first prove that the property at issue is the instrument or proceed of a crime, as is generally the case in asset forfeiture. Further, UWO laws differ from traditional forfeiture laws in shifting the burden of proof to the property owner, who must prove a legitimate source for the wealth at issue. Another difference is that the forfeiture proceeding is instituted against a person rather than against the property. These radical features of UWO laws have, in practice, been tempered by courts, prosecutors, and police, but such laws are still a powerful and controversial tool for seizing assets in circumstances in which traditional forfeiture methods would have likely been ineffective. Only three countries have thus far adopted full UWOs (Australia, Colombia, and Ireland). Australia and Ireland were selected for in-depth study because of their shared traits with the U.S. common law legal system, long established democratic traditions, and a common language. In addition, Australia is the only country that has identified these laws explicitly as "unexplained wealth." The features and implementation of UWO laws in the two countries are reviewed. In both countries, the implementation of the laws has been tempered in practice. Appended table of countries with UWOs, copies of legal statutes, copies of affidavits, newspaper coverage of UWOs, interview protocol, contact list of people interviewed, and list of criteria