Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the federal government's "war on drugs" since the mid-eighties. Several developments called attention to the darker side of this practice, including the decision by then New York City Mayor, Rudolph Giuliani, to deploy forfeiture against drunk drivers in the late 1990s. Title III of the initial forfeiture law consisted of the Comprehensive Forfeiture Act of 1984, which amended the Racketeer Influenced and Corrupt Organizations Statute (RICO) of 1970 to clarify what constitutes forfeitable property, and to create a rebuttable presumption of forfeit-ability. H.R. 1658 also known as the Civil Asset Forfeiture Reform Act (CAFRA), enacted in 2000 by Congress, and 2015 Attorney General Eric Holder narrowed the scope of federal forfeiture statutes and responded to government forfeiture abuses. Forfeiture is a potent deterrent, as well as a revenue source on which law enforcement has grown increasingly dependent. However, it brings with it far fewer procedural safeguards than criminal law.
Concerned about the broad effect of federal forfeiture laws, Henry Hyde (R-Ill., then House Judiciary Committee Chairman) and John Conyers (D-Mich., the senior Democrat on the Committee) teamed up to introduce the Civil Asset Forfeiture Reform Act in a rare display of bipartisan unity. The Representatives were concerned about the problem of police using seized property or funds to finance their own operations. As Bob Barr (R-Ga.) put it, "In many jurisdictions, it has become a monetary tail wagging the law enforcement dog." Testifying before the Judiciary Committee, Willie Jones of Nashville, TN, gave an example of this abuse:
Engaged in the landscaping business, Mr. Jones planned to buy a shrubbery in Houston, TX. Nurseries prefer cash from out-of-town buyers, so Mr. Jones planned to go there with $9,000 in cash. Officers detained him at the airport: suspicious of a large amount of cash, they accused him of being involved in drug-related activities. They eventually let him go, but they kept the money and refused to even give him a receipt for it. Because he did not have 10% of the money seized to put up as a bond, he could not afford to challenge the seizure in the usual way. Disturbed by this and other similar stories of excess, the House members voted to approve H.R. 1658 to curb this abuse. The Clinton administration said that the bill would have a negative impact on the war on drugs. The House soundly rejected an administration-favored alternative, however -- supporters of H.R. 1658 said the alternative bill would expand the federal power, not narrow it.
Most forfeiture activity occurs under Federal law, and most of that is connected to the trafficking of illegal drugs. The Department of Justice established the National Assets Seizure and Forfeiture Fund in 1985 and realized $27 million from drug-related forfeitures that year. By 1992 the total take had climbed to $875 million. Many states followed suit by establishing their own civil forfeiture programs. Cities and other municipal governments have cooperated in forfeiture actions under both federal and state drug laws. They have used such laws on their own to deal with local concerns ranging from unsafe housing, sex work, and to the problem of drunk driving.
The authority to seize property in this way is not inherent. Rather, it is established by statute. It is constrained by those authorizing laws and by the U.S. Constitution. The expansion of forfeiture activity has not gone on without Constitutional challenge. The U.S. Supreme Court has heard at least half a dozen forfeiture cases during the nineties, but its rulings have not done much to rein in the practice. This short survey of the law of forfeiture draws upon these Court decisions. Its introduction to the essential statutory provisions focuses on the federal statutes. State and local provisions tend to be quite similar.
Forfeiture takes two distinct forms -- criminal and civil. Nearly all contemporary forfeiture involves the civil variety. Criminal forfeiture operates as punishment for a crime. It, therefore, requires a conviction, following which the state takes the assets in question from the criminal. Civil forfeiture rests on the idea (a legal fiction) that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the res or the thing involved in some illegal activity specified by statute. Unlike criminal forfeiture, civil forfeiture does not require a conviction or even an official criminal charge against the owner. This is the source of its attractiveness to law enforcement, and its threat to those concerned about the abuse or circumvention of Constitutional protections.
Bennis v. Michigan 517 U.S. 1163 (1996) (Stevens, J., dissenting).
Property for which ownership by itself constitutes a crime, including smuggled goods, narcotics, and automatic weapons. The government's mandate in protecting the public forms the justification for seizure in this case.
Property directly resulting from, or that can be traced to, an illegal activity. Once a crime is identified, the government may seize any property flowing from the activity. In some cases, the government may seize property in lieu of provable criminal proceeds. Statutory innocent owner defenses provide a check on the seizure power, although this burden lies with the owner, not the government.
Property used in the commission of a crime, including vehicles and real estate. By being associated with the crime, the property is "guilty" of the offense and subject to seizure. In some cases, the innocence of the owner may not be a defense, although Constitution limitations, such as the Eighth Amendment's Excessive Fines Clause, may apply.
Criminal forfeiture is a punitive action by the government against the offender. Typically, it occurs as part of a sentence following a conviction. 18 U.S.C. § 982, through cross-referencing, creates a framework of offenses and procedures governing this type of forfeiture, as does 21 U.S.C. § 881. The statute provides for the forfeit of "any property, real or personal, involved in such offense, or any property traceable to such property." In addition, Rule 32.2 of the Federal Rules of Criminal Procedure governs criminal forfeiture proceedings in federal court. Depending on the crime, U.S. Customs procedures from Title 19 may also control.
The nature of the proceeding assures that the defendant is protected by the procedural rights embodied in the Fourth and Fifth Amendment. The property must be identified in the indictment in order to serve notice to the defendant, and an opportunity must be given to contest the forfeiture. These notice and due process procedures are spelled out in Rules 32.2 of the Federal Rules of Criminal Procedure. After December 1, 2009, Rule 32 will require the government to also include a forfeiture notice in its presentencing report. Although the conviction requires the government to prove guilt "beyond a reasonable doubt," the forfeiture is subject to a lower burden of preponderance of the evidence. Furthermore, the burden shifts to the defendant once the government shows that the defendant acquired the property around the time of the crime, and no other likely source existed.
Criminal forfeiture only severs the defendant's interest, so the property rights of third parties (co-owners, banks, and the like) are theoretically unaffected. However, third parties may be unaware of the forfeiture and the property's subsequent disposal. To protect third parties’ interests, the government must provide notice and a hearing to all interested parties. At the hearing, the party must assert and prove their interest by a preponderance of the evidence.
Since the forfeiture acts "against the person" and requires conviction of a crime, the first line of defense is against the conviction. A convicted defendant must shoulder the burden of proving the property did not have the necessary relationship to the crime in order to avoid the penalty.
In theory, civil actions are remedial, not punitive like criminal proceedings. By acting civilly, the government seeks to remedy harm, through the fiction of the property's "guilt." Unlike criminal forfeiture, civil forfeiture proceeds against the property, not the person. In a civil forfeiture case, the government is the plaintiff, the property is the defendant, and any person who claims an interest in the property is a claimant. There is no criminal conviction required, although the government is still required to prove in court that the property was linked to criminal activity.
The statutes applied are 18 U.S.C. § 981, 983, 984, 985 and 21 U.S.C. § 881. To complicate matters, these statutes incorporate by reference Customs procedures from 19 U.S.C. § 1602 involving searches, seizures, administrative procedure, holding, and disposal. A number of federal civil forfeiture statutes were amended by the Civil Asset Forfeiture Reform Act (CAFRA), which was passed by Congress in 2000. This act also improved protections for those who were subject to civil forfeitures.
When the government learns of a crime and establishes a probable cause of the property's involvement (usually as an instrumentality), it may seize the property by executing a warrant first, and defend the forfeiture in court later. Notice occurs through a presentation of the warrant and a publication in a newspaper, according to H.R. 1658, “the notice the Government is required to send to interested parties in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute be sent to achieve proper notice as soon as practicable and within 60 days after the date of the seizure; and (2) required conditions for extending the notification period.” If a party files a claim within the answer period, a civil hearing commences. In uncontested situations, the forfeiture may be handled administratively. To further protect those who were subjects to civil forfeitures, H.R. 1658 made some amendments, including: “An innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.”
Due to its civil nature, the roles of the parties change. Instead of prosecutor versus defendant, the hearing concerns a plaintiff, the United States in the case of federal forfeitures, and a defendant, the property in question. The owner is effectively put in the position of being a third-party claimant. Furthermore, civil hearings involve a more lenient burden of proof than "beyond a reasonable doubt." Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove by "preponderance of the evidence" that it is not.
Since the government determines which form of forfeiture to use, it is not surprising that most are carried out using the civil forfeiture. In response to increased concerns about government abuse, many states have passed legislation in recent years to restrict the use of civil forfeiture, and some have outright banned it unless the owner has already received a criminal conviction for the offense that justifies seizure. However, the Equitable Sharing Program allows the government to liquidate seized assets and retain the proceeds. In 2015, Attorney General Holder unilaterally prohibited federal law enforcement from working with local and state police to take on forfeiture cases where local and state law prohibits it without warrants or criminal charges in an effort to address this issue, it also restricted the federal government's ability to seize bank accounts to situations in which serious illegal transactions were proven to have occurred.
[Last updated in January of 2023 by the Wex Definitions Team]
