Civil asset forfeiture has been part of the federal government’s law enforcement arsenal since the founding of the Republic and now exists in all state jurisdictions as well. Civil forfeiture laws establish a legal process by which title to ‘‘tainted assets’’— including contraband and other assets related to specified criminal activity—is transferred to the government. Although civil forfeiture is generally triggered by criminal conduct, it is accomplished through civil or administrative proceedings and to be distinguished from criminal forfeiture, which can only be imposed after criminal conviction.
Colonial and early federal courts forfeited ships and cargos when used in violation of customs or revenue laws, and subsequent forfeiture laws applied to other categories of contraband and instrumentalities. But modern civil forfeiture laws, initially enacted as part of the War on Drugs in the 1970s, reach much further. Under 21 USC } 881(a) and expansive legislation since, the government is authorized to seize and forfeit drugs; drug manufacturing equipment; cars, houses, and other property used to facilitate drug crimes; and proceeds traceable to drug transactions. Other modern civil forfeiture laws target assets connected to alien smuggling, money laundering, customs offenses, and, under the 2001 Patriot Act, terrorism. State forfeiture laws have also proliferated.
Forfeiture is designed to strip criminals of their undeserved, ill-gotten gains. In theory, forfeitures also can terminate criminal enterprises in a way criminal penalties cannot. Jailing a drug dealer, for example, may simply allow a subordinate to take his place, but seizing the means of production and other capital may shut down a trafficking business for good. In practice, however, forfeiture seems to have done little to incapacitate or deter the multibillion dollar drug trade, because forfeiture losses inflict so small a loss on drug profits.
Whatever their merits as crime-control mechanisms, modern forfeiture laws provide law enforcement with important procedural and financial advantages that, beginning in the mid-1980s, generated greater government reliance on forfeiture and a good deal of concern on the part of legislators, courts, and civil libertarians. Procedurally, a number of benefits accrue to federal and state prosecutors from an ancient legal fiction that dominates all civil forfeiture proceedings: that the property is guilty and on trial. This means, first, that forfeiture can be used even when there is insufficient evidence for a criminal case, when the defendant is a fugitive, or even when the defendant has been acquitted. Second, as a ‘‘civil action’’ against the property itself, few constitutional safeguards imposed on criminal prosecutions apply. Courts have found that the claimant has no constitutional presumption of innocence, no right to an appointed attorney, and no right to confront witnesses. The constitution imposes no burden of proof on the government, permitting most states (and the federal government until reform legislation in 2000) to require the claimant to establish the property’s ‘‘innocence.’’ There is also no constitutional requirement that the property owner be at fault or be prosecuted for the underlying criminal activity. The ‘‘disregard for due process’’ in forfeiture law, as a Second Circuit opinion described it, has deterred property owners from even challenging the government in the vast majority of cases.
However, the government’s largely unchecked forfeiture power began to encounter resistance beginning in the 1990s, first from the courts and then from Congress. In 1993, the Supreme Court decided four forfeiture cases against the government. The most significant, Austin v. United States, 509 U.S. 602, held that forfeiture constitutes punishment regardless of whether it is labeled civil or criminal and, therefore, is subject to the Eighth Amendment’s prohibition on excessive fines. The Austin holding should provide recourse for a homeowner whose house is seized because his daughter sold ‘‘nickel bags’’ in her bedroom, for example. Subsequently, a coalition of conservative and liberal lawmakers excised some of the more draconian provisions from most federal forfeiture laws by passing the Civil Asset Forfeiture Reform Act of 2000. This law filled part of the constitutional void by affording a number of due process rights to the claimant in federal proceedings, including requirements that the government provide adequate notice, prove its case by a preponderance of the evidence, provide counsel to the claimant when the property is his or her primary residence and in limited other circumstances, and temporarily return the property if the claimant would otherwise suffer a substantial hardship. 18 U.S.C. sec. 983. CAFRA also eliminated the short deadline and the ten percent bond federal law had required to challenge a forfeiture, which had effectively denied access to the courts for many claimants. Substantively, CAFRA expanded the number of offenses subject to both civil and criminal forfeiture; unified and refined the defense for innocent owners that had been afforded by earlier federal statutes; and defined the ‘‘facilitation’’ of an offense to require that a ‘‘substantial connection’’ between the asset’s use and the criminal conduct (rather than mere incidental involvement, as some courts had permitted). Similar protections do not yet apply in most state proceedings, although CAFRA will likely prompt reform legislation in some states.
Neither CAFRA nor the Supreme Court has addressed another aspect of forfeiture law that is perhaps most responsible for fueling overzealous, sometimes lawless, use of the forfeiture power: since 1984, federal law has authorized law enforcement agencies to retain the drug-related assets they seize for their own use. States have largely followed suit, but even when a state’s law earmarks forfeited assets to education or other non-law enforcement purposes, the federal scheme allows a local police force to ‘‘federalize’’ its seizure and receive back eighty percent of the assets for its own budget. Under this arrangement, some local police forces have managed to double or triple their appropriated budgets through forfeitures.
This financial incentive scheme has aroused a number of civil libertarian concerns. First, with facilities, salaries, and positions sometimes dependent on how much money can be generated by their own seizures, police and prosecution agencies may pursue their economic self-interest at the expense of both crime control and due process. This financial incentive may also skew plea bargains in favor of drug kingpins and against ‘‘mules’’ without assets to trade, or, as one federal district court has warned, create ‘‘an unduly dangerous propensity to encourage unreasonable searches and detentions.’’ Buritica v. United States. Arguably, this prosecutorial conflict of interest is substantial enough to abridge due process under the Supreme Court’s dicta in Marshall v. Jerrico (1980), although only one lower court decision, in New Jersey, has so held to date. Another concern is that these forfeiture rewards could ultimately produce self-financing, unaccountable law enforcement agencies divorced from legislative oversight. Here too, the issue implicates constitutional protections, and the Supreme Court may one day have to decide whether providing federal executive agencies with the power to finance themselves violates the Appropriations Clause and the separation of powers it was designed to protect. Meanwhile, a few states have passed laws that redirect forfeited funds into education, drug treatment, or other non-law enforcement uses.
ERIC D. BLUMENSON
References and Further Reading
Cases and Statutes Cited
See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974); Due Process; United States v. 92 Buena Vista Avenue, 507 U.S. 111 (1993)