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Forfeiture is the loss or confiscation of one’s property in consequence of a crime, offense, or breach of obligation. It is an ancient practice sustained by differing rationales through the centuries. In biblical times, religious ideas supported the view that property causing death was ‘‘guilty’’ and had to be destroyed as a form of expiation. In medieval England, offending property was forfeited to the king for religious purposes in a practice known as deodand. Later, these forfeitures became a source of crown revenue, and confiscation was justified as a penalty for carelessness.
Early English law also permitted forfeiture of one’s estate upon conviction of treason or other felony. The theory behind estate forfeitures was that criminal acts were a breach of the king’s peace and warranted a loss of property. By statute, English law also provided for the forfeiture of property, such as ships or cargo, used in violation of the customs and revenue laws. Customs and revenue forfeitures were actions in rem, that is, actions taken directly against the property. Unlike felony forfeitures, which required a prior conviction of a wrongdoer, custom and revenue forfeitures proceeded directly against a thing and did not depend on the conviction of anyone for anything. In the nineteenth century, England abolished deodand practice and, by 1870, eliminated most felony and treason forfeitures.
The deodand tradition never took root in the United States. Nor did the practice of forfeiture of estate as a consequence of a felony conviction. Indeed the U.S. Constitution (Art. III, sec. 3, c1.2) specifically limits the forfeiture of one’s estate as a punishment for treason, and Congress, in 1790, prohibited forfeiture of one’s estate as a consequence of a federal criminal conviction. The forfeiture concept that did flourish was the confiscation of property as a means of enforcing customs and revenue laws. Beginning in 1789, Congress enacted laws permitting the confiscation of contraband and the ships used to transport contraband, such as vessels transporting illegal munitions. These laws also authorized seizure of any goods imported or exported in violation of tariff obligations.
As in English practice, U.S. contraband, customs, and revenue forfeitures were accomplished by civil in rem proceedings that named the property itself as the defendant. Since the proceeding was against the thing, the owner had no personal liability beyond the value of his interest in the thing, and forfeiture was permissible even though an owner was not guilty of any crime and did not know of the offending use of his property. By seizing property subject to customs laws, the government could prevent an errant ship and its cargo from simply sailing away, and it could secure its revenues even if the ship owner could not be located. And if the items seized were contraband or dangerous, forfeiture enabled the government to remove the property from circulation and prevent harm to the public.
Modern Forfeiture Laws
Although Congress expanded its postcolonial use of forfeiture to reach other forms of property, such as misbranded food or illegal distillery equipment, modern forfeiture law dates specifically to 1970. In that year Congress passed two seminal statutes. The first, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 881) marked the dawn of contemporary drug forfeiture practice. It authorized the government to seize and forfeit contraband drugs, drug manufacturing and storage equipment, and any conveyances used to transport drugs. With subsequent amendments, this law has been applied to embrace an ever-widening list of properties, including assets having a remote connection to illegal drug activity. The law now permits forfeiture of property intended to be used in a drug transaction and property used or intended to be used to facilitate a drug crime. The government has confiscated, for example, entire residences based on a small-scale drug sale on the premises and cars merely driven to meetings where drugs deals were discussed.
The second statutory foundation of modern forfeiture law was the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1961–1968). This law, together with criminal forfeiture provisions of the Comprehensive Drug Abuse Prevention and Control Act, rekindled the long dormant idea of using forfeiture of assets as a significant form of criminal punishment. Under RICO, a person convicted of a racketeering offense faces not only prison and a fine but also the loss of any interest in his criminal enterprise and any property, including legitimate businesses, connected to or derived from the racketeering activity. The potential scope of RICO is astounding. For example, in Alexander v. United States, 509 U.S. 544 (1993), the owner of various businesses dealing in sexually explicit materials was convicted of federal obscenity law violations and racketeering. The racketeering offenses were based on a finding that seven items sold in thirteen Minnesota adult stores were obscene and represented a long-running pattern of illegal activity. In addition to a prison term and a hefty fine, the district court ordered forfeiture of all of the defendant’s inventory, stores, vehicles, and $9 million acquired in the illegal enterprise.
Although the most popular and well-known use of forfeiture involves seizure of assets connected to drug violations, property is subject to forfeiture under a broad array of federal and state laws. There are over 150 federal laws permitting some form of forfeiture, and almost every state has one or more statutes authorizing confiscation of property. Federal laws permit, for example, forfeiture of property connected to violations of gun laws, gambling laws, liquor laws, customs laws, securities laws, income tax laws, obscenity laws, telemarketing laws, and even wildlife protection laws. A particularly potent statute is the Money Laundering Control Act of 1986, as amended (18 U.S.C. §§ 981, 982), which provides for criminal and civil forfeiture of property involved in or traceable to money laundering and banking related offenses.
The government justifies modern forfeiture law as a highly successful device for taking the profit out of crime and destroying criminal enterprises that tend to continue operating even if some involved individuals are jailed. But forfeitures have become very profitable for the government, and a significant portion of law enforcement revenue now depends on aggressive pursuit of forfeitable property. The central, although not exclusive, clearinghouse for federal forfeiture proceeds is the Asset Forfeiture Program of the Department of Justice. Officials reported that, in 1995, net deposits to the Asset Forfeiture Fund totaled $487.5 million dollars, and that, between 1985 and 1995, the fund received more than $4.3 billion in forfeited property. Since 1989, fund receipts have averaged onehalf billion dollars per year and reached $600 million in 1999. A marked jump in forfeiture receipts coincided with the passage of legislation in 1984 that created the fund and permitted drug forfeiture proceeds to be funneled back to the police agencies that seized them.
Monies from the Asset Forfeiture Fund are used for a variety of purposes but the lion’s share, about one half, is paid to state and local law enforcement agencies based upon their participation in forfeiture actions. In a practice known as equitable sharing, local agencies ask the federal government to adopt their forfeiture cases. The federal government assumes control, subtracts its expenses, and then returns the bulk of the amount to the local agency to be used solely for law enforcement needs. This payback arrangement allows local law enforcement to evade state legislative or constitutional requirements that may mandate that forfeited property be turned over to the state treasury or used to pay for non-law enforcement needs such as schools.
Even apart from federal equitable sharing arrangements, state and local jurisdictions have developed their own forfeiture programs and have netted millions in property. The total value of forfeited assets from all jurisdictions is unknown, but press accounts report that huge sums have been acquired. For example, between 1989 and 1992, the Sheriff’s Office in Volusia County, Florida, seized $8 million in cash in roadside stops of motorists. Although the office returned about half of the money in settlements, it still retained $4 million over the three-year period.
Given the broad scope of modern forfeiture laws and the large sums that law enforcement agencies stand to keep for themselves, critics have charged that forfeiture decisions are driven more by the pursuit of revenue than legitimate law enforcement goals. They cite police tactics such as the reverse sting where police sell drugs to buyers, sometimes in drive-by transactions. The focus is on buyers, not suppliers. And the buyer will likely not be prosecuted, because the objective is the cash and the car. A New York City police commissioner explained why drug agents who work the I-95 drug corridor target suspects on the southbound lanes, and not those traveling northbound from Florida to New York City. Those traveling south are more likely to have drug proceeds while those traveling north are more likely to have drugs. Law enforcement can spend forfeitable cash; it must destroy contraband drugs.
The Distinction Between Criminal and Civil Forfeiture
Modern forfeiture law is entirely statutory, and the precise practices permitted depend on each enactment. Nevertheless there are broad patterns that allow a general description of how forfeiture laws operate. The central, defining characteristic is whether a statute permits criminal or civil forfeiture. Although both criminal and civil forfeiture laws are powerful weapons in the hands of law enforcement, these two types of forfeiture function in fundamentally different ways.
Criminal forfeiture is an in personam proceeding, that is, an action taken against the individual as part of a criminal case. A prosecutor triggers a criminal forfeiture by including within an indictment a forfeiture count describing the property to be confiscated. To suffer the penalty of forfeiture, the defendant must first be found guilty of the underlying offense, such as drug trafficking or money laundering. In the underlying criminal proceeding, the defendant enjoys all of the rights of the criminally accused such as right to counsel and a presumption of innocence. The criminal forfeiture is, however, an element of the defendant’s sentence, not the underlying offense. It is thus an additional punishment imposed on the defendant, over and above a fine or imprisonment. Its closest ancestor is the English forfeiture of estate for felonious behavior or treason.
Upon a finding of forfeiture, the court enters an order authorizing seizure of the identified property. The property may already be in government hands if, after a hearing, the prosecutor convinced the court that there was a substantial likelihood that the defendant would be convicted and that there was an immediate need to protect the property. Under most statutes, property subject to criminal forfeiture includes the defendant’s interest in any proceeds from the criminal violation and any property, such as cars, houses, or tools, used or intended to be used to commit or facilitate the violation. Under such expansive terms, criminal forfeiture can reach a wide range of property, and it may be valued far in excess of any fine authorized for the underlying crime. Almost all criminal forfeiture statutes also permit the government to confiscate the defendant’s interest in other property as substitute assets if the forfeitable property was hidden, transferred, commingled, or diminished in value.
Criminal forfeiture affects only the defendant’s interest in the tainted property and not the property itself. Third parties having a claim against the property, such as joint tenants or persons having security interests, do not lose their interests by virtue of a criminal forfeiture order. But the government may pursue forfeitable property in the hands of third parties, and third parties face significant hurdles in protecting their interests. First they face dissipation of their interests as they generally may not press their claims until the criminal proceeding is concluded. Second, after a court has entered an order of forfeiture and notice is given, third parties must act swiftly and convincingly. Typically they have thirty days to file their claims and, at a later hearing, must prove, by a preponderance of evidence, that they have a superior title in the property or are bona fide purchasers.
Although significant forfeitures have occurred in connection with criminal actions, the most explosive forfeiture activity has come in the area of civil forfeiture. This is not surprising since the procedures permitting such forfeitures are congenial to the government, and since civil forfeiture does not depend on the government meeting the arduous task of proving someone guilty of a crime. Under federal law and most state civil forfeiture laws, the government may seize property from anyone once it has probable cause to believe that the property is contraband, proceeds of a crime, or used or intended to be used in the commission of a crime. Probable cause is the weakest of all evidentiary burdens requiring only a fair probability that property is forfeitable.
Civil forfeiture is an action in rem, that is, a proceeding directed against ‘‘guilty’’ property and not against any person having an interest in the property. Civil forfeiture is a direct descendant of revenue and customs laws and, as a result, many federal forfeiture rules of practice are based on admiralty and customs procedures. In most cases, civil forfeiture laws permit the government to seize property without giving the owner notice or any prior opportunity to object. Once the property owner or claimant is notified that a seizure has occurred, he or she may contest the action, but they must do so speedily. Typically the property owner must file a claim within twenty days and post a bond. At a hearing on the matter, once the government discharges its small burden of proving probable cause to forfeit, the burden shifts to the property owner to show, by a preponderance of the evidence, that the property is ‘‘innocent.’’
Because the forfeiture proceeding is a civil proceeding, the property owner enjoys none of the procedural protections ordinarily associated with a criminal trial, such as appointed counsel or a presumption of innocence. To escape a civil forfeiture, a property owner must prove that there was no underlying offense, or that, if there was an offense, the property was not connected to it. Owners may not defend by saying that they were not involved in any criminal activity or did not know that the property was used for criminal purposes. Many federal and state statutes soften this harsh limitation by recognizing a so-called innocent owner defense. Property owners may avoid a forfeiture order if they prove they had no knowledge of any wrongdoing and did all that was reasonably possible to prevent wrongdoing. However, since it is virtually impossible for property owners to prove that they could not have been more cautious, the innocent owner defense has proved to be difficult to claim. For example, parents who lost their car because their son used it to transport drugs were denied the innocent owner defense because, although knowing absolutely nothing of the illegal activity, they knew the son had a minor criminal record.
As forfeitures have soared, those harmed, particularly innocent third parties, have raised various constitutional challenges. Parties have claimed that civil forfeiture which permits summary, no-notice seizures of property, allows the government to take property on minimal proof that it was tainted with illegality, shifts the burden of proof of innocence to the property owner, and denies minimal procedural due process guaranteed by the Fifth and Fourteenth Amendments. With one exception, the federal courts have been unsympathetic.
In United States v. James Daniel Good Real Property, 510 U.S. 43 (1993), the Supreme Court modestly heightened procedural protections by limiting the government’s authority to seize certain property with no advance notice or opportunity to be heard. At least with respect to real property, such as houses or farms, the Court held that, absent exigent circumstances, procedural due process requires pre-seizure notice and an opportunity to be heard. While the ruling is a welcome development for property owners, including apartment dwellers, it applies only to real property. Cars, boats, planes, currency, and other movables remain automatically covered by the exigent need to seize-first-and-ask-questionslater.
Substantively, parties have argued that, as applied in particular circumstances, forfeiture laws also violate the excessive fines clause of the Eighth Amendment, constitute double jeopardy under the Fifth and Fourteenth Amendments, and are fundamentally unfair to innocent owners under principles of substantive due process. With the exception of the excessive fines attack, the courts have essentially rebuffed these claims as well. And, as with the challenges to forfeiture procedures, they have done so largely based on long historical acceptance of the forfeiture remedy.
The Eighth Amendment provides that excessive fines shall not be imposed. The Supreme Court has held that a fine is a monetary penalty exacted for some offense and, specifically, that a forfeiture is a fine if it is punishment for an offense. In United States v. Bajakajian, 524 U.S. 321 (1998), the Court concluded that criminal forfeitures are fines because they are additional penalties imposed on defendants for criminal behavior. In Bajakajian the defendant pleaded guilty to failing to report that he was transporting more than $10,000 in currency outside of the United States. In addition to a term of probation and a conventional fine of $5,000, the government sought criminal forfeiture of the entire amount that the defendant sought to remove from the country, namely $357,144. In the only Supreme Court case ever to find a fine excessive, whether a criminal forfeiture or otherwise, the Court held that confiscation of $357,144 for a currency violation was ‘‘grossly disproportional’’ to the gravity of the offense and, therefore, excessive. The defendant’s crime was solely a reporting violation, unrelated to any other criminal activity, and the harm caused was minimal.
In Bajakajian, the Court left intact its earlier ruling from Austin v. United States, 509 U.S. 602 (1993), that civil forfeitures, too, could be fines and could be unconstitutionally excessive. But Bajakajian clouded the rationale for applying the excessive fines clause to civil, as opposed to criminal forfeitures. Austin said that civil forfeitures were historically understood to be punishment, and the only question was whether they were grossly disproportionate and, hence, excessive. Not all civil forfeitures are disproportionate. It is perfectly proportionate to seize drugs or other contraband, no matter how valuable, because, by definition, that property is illegal to possess. It is also perfectly proportionate to seize the proceeds of a crime offense since criminals should not profit from their wrongdoing. Gross disproportionality potentially arises when the government seizes instrumentalities (i.e., property used to commit or to facilitate a crime) especially if it is property owned by someone uninvolved in the criminal activity itself. In Bajakajian the Court seemed to say, however, that no traditional or historically accepted civil forfeitures, whether of contraband, proceeds, or instrumentalities, could ever be considered punishment. Only those modern in rem forfeitures that ‘‘blurred the traditional distinction between civil in rem and criminal in personam forfeiture’’ could be punishment and, thus, limited by the excessive fines clause. But the Court’s new distinction in Bajakajian 524 U.S. at 331 was never explained, and the application of the excessive fines clause to modern civil forfeiture is now in doubt.
Parties have also raised double jeopardy claims to challenge forfeitures. The double jeopardy clause provides protection against being twice tried or punished for the same offense. It is inapplicable to criminal forfeitures because the imposition of criminal punishment such as jail and forfeiture is imposed in a single criminal proceeding. But defendants claimed that a criminal penalty imposed in a criminal case followed by a separate civil forfeiture arising out of the same facts, or vice versa, was double punishment. The idea was derailed in United States v. Ursery, 518 U.S. 267 (1996). Civil forfeitures, the Court said, were primarily civil regulatory measures that encouraged people to insure that their property was not used for illicit purposes. The Court noted that although forfeitures may have some punitive aspects, historically they were not regarded as punishment, and viewed in their entirety were not so punitive as to render them a form of double jeopardy punishment.
A final, doomed constitutional challenge to civil forfeiture rested on the claim that applying forfeiture to seize the property of innocent owners was a violation of substantive due process because it was arbitrary and irrational. Seizing the property of innocent owners does make sense if the property is contraband. It is also rational to seize property that constitutes traceable proceeds of crime, even in the hands of innocent third parties. The idea is that in deciding between harm to the innocent third party and closing off avenues for criminals to launder their profits, a legislature may rationally choose to frustrate the criminal. Moreover a third party, like a lawyer, may be in a position to consider whether property was obtained from a known or suspected criminal. But even the Supreme Court seemed to acknowledge that forfeitures applied to innocent persons whose property was simply used by another to commit a crime could be irrational.
In Calero-Toledo v. Pearson Yacht Co., 416 U.S. 663 (1974) the Court upheld the forfeiture of a yacht because a single marijuana cigarette was found on board. The lessor boat company had no knowledge of the drug use but failed to show what degree of care it used in supervising how the boat was used. The Court upheld the forfeiture saying it might induce lessors to exercise greater care. At the same time, the Court also observed that it would be difficult to reject the constitutional claim of an owner who was innocent and proved he had done all that he could do to prevent the illicit use of his property. But that is precisely what a plurality of the Court did in Bennis v. Michigan, 516 U.S. 442 (1996) where it permitted the forfeiture of an innocent wife’s interest in a car seized from her husband.
In Bennis, the husband had been convicted of an indecent act with a prostitute in the vehicle. The wife’s interest was sacrificed even though she had absolutely no awareness that her husband had behaved or would behave as he did. Nevertheless, the plurality reasoned that there was long-standing precedent permitting forfeiture against innocent owners and that such forfeitures serve purposes such as preventing further illicit use of the property. Justice Clarence Thomas, writing separately, said that forfeiture of property of innocent owners was valid because it was blessed by history and that the case was a reminder that the Constitution did not prohibit everything that was intensely undesirable. His comments underline the reality that, except for the requirement of pre-seizure notice to seize real property and some boundaries on grossly disproportionate criminal forfeitures, the constitution places very few limits on the use of a practice courts have described as harsh and oppressive. They also make clear that if reforms do come, they must come from the legislatures that originally created and successively broadened modern criminal and civil forfeiture.
- BLUMENSON, ERIC, and NILSEN, EVA. ‘‘Policing for Profit: The Drug War’s Hidden Economic Agenda.’’ The University of Chicago Law Review 65 (1998): 1.
- CHEH, MARY ‘‘Can Something This Easy, Quick, and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution.’’ New York Law School Review 39 (1994): 1–2.
- KESSLER, STEVEN Civil and Criminal Forfeiture: Federal and State Practice. Updated periodically. Deerfield, Ill.: West Group, 1993.
- SMITH, DAVID Prosecution and Defense of Forfeiture Cases. New York: Matthew Bender & Co., Inc., 1981. Updated periodically.
- S. Department of Justice. Annual Report of the Department of Justice Asset Forfeiture Program: Fiscal Years 1995 and 1996. Washington, D.C.: U.S. Department of Justice, 1996.