united-states criminal-law canada
What happens to the possessions of a convicted person?
<p>What happens to a person's assets, such as a vehicle, house, or company, when they are given a long prison sentence, such as several years or life? Are these items automatically turned over to the state, or does the individual retain the right to determine how their property is distributed?</p>
<p><em>P.S. What about when a person has been arrested but not yet convicted, do most jurisdictions impose a temporary freeze on their assets, or does the principle of &quot;innocent until proven guilty&quot; apply and they still have complete control over their property?</em></p>

<p>A person's property cannot be seized in the US except by due process of law. There is no law that declares the property of a convicted person to be forfeit to the state. A person who is convicted might be subject to a fine, in which case a court could order seizure of property to pay the fine. Your property might also be seized as a result of a civil forfeiture proceeding (where the government sues your property for being the fruit of an illegal enterprise), but that only applies to property believed to be connected to a crime (e.g. purchased with the proceeds of a crime). Civil forfeiture doesn't even require that you be arrested.</p>
<p>Barring that circumstance, the person retains their rights to their property. It is then up to them to make suitable arrangements for the protection or disposition of their property.</p>

<h2>They are not <em>taken</em>, but they may be <em>lost</em></h2>
<p>They stay where they are and their spouse or other authorized person continues to use them, if any.  Or the convicted's CPA or attorney may tend to the assets.</p>
<p>However, often certain &quot;time bombs&quot; begin ticking, such as mortgage payments, rent, property tax, or a car parked for a long time on the street getting a &quot;move in 72 hours&quot; notice.  (that last one happens <em>a lot</em> on even minor crimes).</p>
<p>We hope friends, family or counsel (or the defendant themselves if out on bail) will be pro-active and manage this, and get valued assets secured.</p>
<p>Other than that, the &quot;bomb&quot; cooks off, the car gets towed, eviction or foreclosure runs unopposed. The personal property abandoned there gets handled in the same way as for a non-imprisoned person.</p>
<p>Note that many types of property aren't physical like that. Someone who has shares of a stock, for instance, will still own the stock.  A lottery annuity will continue to pay. Those assets will await the defendant's freedom, or at worst <em>escheat</em> to the state, e.g. a bank account which has gone inactive.</p>
<p>&quot;escheat&quot; means the money is in the care of the state, but the defendant or heirs can claim it whenever able.</p>
<h2>But the victims will go after assets, probably</h2>
<p>However, if the defendant has assets of value, the victims may go after it - via a civil lawsuit essentially parallel to the criminal charges. One advantage of a &quot;guilty&quot;, <a href="https://en.wikipedia.org/wiki/Alford_plea" rel="noreferrer">&quot;Alford&quot;</a> or <a href="https://en.wikipedia.org/wiki/Nolo_contendere" rel="noreferrer">&quot;nolo contendre&quot;</a> plea is that no trial occurs, so there is no gold mine of evidence; the plaintiffs must make their case from scratch.  Still, in a civil suit they <em>do</em> get to hold your guilty plea against you, so you're likely to lose.  They can then go after the defendant's assets.</p>
<p>Note that certain asset types - notably 401(K)s - are not targetable.  And the defendant can <em>always</em> declare bankruptcy, and preserve whatever their state allows one to exempt from bankruptcy: e.g. in Florida, your homestead <strong>of <em>any</em> value</strong>. And now you know why OJ Simpson lives in Florida. Bankruptcy cannot cancel debts owing from willfully illegal actions, but, creditors can't go after assets that <em>would be</em> protected by bankruptcy.</p>

<p>In the big picture, the state recognizes that you still have a property interest in many things, such as your home, your company, your bank account, or your car. You still have ownership of most of the items that were yours in the first place, but the issue becomes exercising control over those items due to your being incarcerated. Someone who is incarcerated will usually grant their power of attorney to someone else to handle their affairs, including management of various property interests. That person has the authority to act in your stead, such as selling your car, managing your bank account, or renting out your house.</p>
<p>This can also include management of a business, however, most businesses will simply carry on without you, promoting the assistant manager to manager and carrying on as best they can - that's part of the point of businesses, is that they're simply intended to operate independent of the people who comprise it. Those businesses which cannot function without you will usually cease to operate if you are incarcerated. Remember, conviction of a crime is a long, long process, so it's not like you (or your business) wouldn't have had an opportunity to set up a succession plan or some sort.</p>
<p>Property that has an evidentiary value will be seized and held as long as needed. If you're arrested for a murder committed with a firearm and a gun is in your possession (or in your home, when they search it with a warrant), that gun is being held as evidence, and it will continue to be held as evidence until such time as it is no longer needed or until it is determined to not have evidentiary value (such as if analysis of the rifling indicates that this gun is not the murder weapon). That process may take a very long time. Evidentiary property can be reclaimed after it is no longer needed, though much property is not reclaimed and is as a result disposed of. I will note that this is how this should <em>generally</em> operate, but there are complexities to this regarding forfeiture which go outside of my scope of knowledge.</p>
<p>Property on your person when you're arrested and brought to jail will generally be processed and stored by the jail. This would include your clothes, your wallet, your car keys, etc. This will be searched and then stored, with the idea being that when you walk out of jail later (whether you were bonded out, served a sentence, were found innocent, etc.) that you'll have your property returned. This storage process often divides your &quot;small property&quot; from your clothes. &quot;Small property&quot; is your personal effects (wallet, keys, phone, jewelry, etc.) and valuables that can get sealed in a small plastic bag to verify that no one stole your watch or rings or whatever. Inmates in jail can then release their property to a family member, and this can be done either as &quot;all property&quot; (including the clothes, such as if you don't plan on getting out of jail) or just the &quot;small property&quot; (in case you want your wife to be able to get your car keys to get your truck from the bar you were at last night).</p>
<p>There may be additional institutional requirements regarding the storage of property,  but that's a general guideline. When you are released to the street, your property will be returned to you. If you're being transferred to another facility (such as another jail or prison) your property will either be transferred with you or the facility may hold your property for a period of time to be picked up by someone you've designated (or you may be able to pay to have the property mailed). If the property is not picked up in that timeframe, it will be destroyed or forfeited. Such forfeited clothing is often added to a &quot;lost and found&quot; bin that may be used when inmates are released to the street without suitable clothing. (You might be surprised how many people get arrested in their birthday suit.)</p>
<p>The issue of personal property upon arrest does get more complicated  when you're dealing with situations of people having more than just their clothes and wallet on them. Jails will often not store anything beyond &quot;small property&quot; and clothes due to space constraints, so if you are arrested with a backpack or a suitcase on hand, they will refuse to accept this property. Oftentimes, if you are arrested and have other people around, the arresting officer may let you give the backpack or suitcase to your friend so they simply don't have to deal with it. Assuming that this wasn't the case though, the way that this should <em>generally</em> go is that the arresting agency will hold the property for a short period of time before destroying it, and during that time, you can designate someone to come pick up your items. If your property is loose, rather than at least being organized into a backpack or a suitcase, such as if you're homeless and arrested from your camp... well, you're not <em>supposed</em> to be deprived of property without due process of law, but that's exactly what's going to happen.</p>
<p>As for other property not on your person, such as your belongings in your apartment, your car, or even your home, that starts to depend on the particular situation. If you have a loan or a lease, and you fail to pay your obligations on that loan or lease, then it will be confiscated, whether that means a repo man taking your truck or a landlord taking your apartment back over. All of those situations generally have well-worn civil processes, such as repossession of a vehicle for an unpaid loan or eviction from an apartment for unpaid rent, so I'll avoid going too deep into those possibilities. Again, you would usually have established someone as a power of attorney to deal with these things for you.</p>
