Fighting Crime in Non-Criminal Proceedings: A Comparative Study of American Civil Forfeiture and Italian Preventive Confiscation

There is a growing trend toward the widespread use of asset recovery tools that allow for the seizure of property linked to criminal activities but do not require a criminal conviction. This Article examines two prominent examples of such tools: American civil forfeiture and Italian preventive confiscation. Both mechanisms allow authorities to confiscate cash and property that they suspect are connected to illegal activities, regardless of whether the owner has been charged with or convicted of any crime. Despite the differences between them in scope and rationale, both instruments have sparked significant debates about constitutional protections, particularly in relation to due process. This Article introduces a theoretical model that bridges American civil forfeiture and Italian preventive confiscation. This model aims to reshape asset forfeiture laws by integrating effective asset recovery mechanisms with a strong commitment to due process and the protection of fundamental rights, striking a balance between combating crime effectively and respecting individual liberties. It advocates a strict demarcation between the types of property eligible for seizure without a prior conviction of the owner—specifically limiting eligibility to contraband and illicit proceeds, while explicitly excluding instruments and property that merely facilitate criminal activities.