, from the Latin confiscatio
'joining to the fiscus, i.e. transfer to the treasury' is a legal seizure without compensation by a government or other public authority. The word is also used, popularly, of spoliation
under legal forms, or of any seizure of property without adequate compensation.
Scope and history
As a punishment, it differs from a fine
in that it is not primarily meant to match the crime but rather reattributes the criminal's ill-gotten spoils (often as a complement to the actual punishment for the crime itself; still common with various kinds of contraband
, such as protected living organisms) to the community or even aims to rob them of their socio-economic status, in the extreme case reducing them to utter poverty, or if he is condemned to death even denies them inheritance to the legal heirs, thus punishing the entire bloodline (in the primitive logic of the blood feud).
Meanwhile limited confiscation is often in function of the crime, the rationale being that the criminal must be denied the fruits of their fault, while the crime itself is rather punished in some other, independent way, such as physical punishments
or even a concurring fine.
Such rich prizes often proved too much temptation for the authorities to refrain from abuse out of greed, especially when taxation was relatively low-yielding, not permanent (often requiring assent from estates etc. at a political cost) and aroused far more resistance than 'making criminals pay'.
Often, police will auction confiscated items, and the profits will often go to charities. Theoretically, it is possible for owners to buy back confiscated items.
In airports, potentially dangerous items (such as hazardous chemicals, weapons, and sharp objects) are usually confiscated at inspections. Other items, such as certain food, may also be confiscated, depending on importation laws. Depending on the nature of the items, some may be returned at the end of the flight, while most are discarded or auctioned off. However, customs officers have a disreputable reputation, exercising arbitrary power. The musical comedian Anna Russell had an Irish harp confiscated by the U.S. Customs Service.
Originally, in Roman law, it was the seizure and transfer of private property to the fiscus by the emperor; hence the appropriation, under legal authority, of private property to the state.
In modern, e.g. English law, the term embraces forfeiture in the case of goods, and escheat in the case of lands, for crime or in default of heirs (see also Eminent Domain). Goods may also be confiscated by the state for breaches of statutes relating to customs, excise or explosives.
In the United States among the "war measures" during the American Civil War, acts were passed in 1861 and 1862 confiscating, respectively, property used for "insurrectionary purposes" and the property generally of those engaged in rebellion.
- For legal confiscation in the United States, see search and seizure.
There was from the late 1980s onwards a resurgence of interest in confiscation as crime prevention tool, which went hand in hand with the interest in the criminalization of money laundering
. A number of international instruments, starting with the 1988 Vienna Convention, have strongly suggested the enactment of legal provisions enabling confiscation of proceeds of crime. The 40 recommendations of the FATF
have also stated its importance as a crime prevention tool.
A further trend has been the reversal of the burden of proof for the purpose of facilitating confiscation.
Sources and references