"They don't have to convict you. They
don't even have to charge you with a crime. But they have your property.
--Henry Hyde, as quoted in CNN Article
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. Two recent developments, however,
have called attention to the darker side of this practice: a decision
by New York City's Mayor, Rudolph Guiliani, to deploy forfeiture against
drunk drivers, and a House-approved bill that would, if signed into law,
drastically narrow the scope of the federal forfeiture statutes. Forfeiture
is a potent deterent, as well as a revenue source on which law enforcement
has grown increasingly dependent. However, it brings with it far fewer
procedural safeguards than the criminal law.
In the words of former President George Bush, "[A]sset
forfeiture laws allow [the government] to take the ill-gotten gains of
drug kingpins and use them to put more cops on the streets." New York
City Police Commissioner Howard Safir invoked deterence when he said,
"We believe that ... the threat of civil forfeiture and the possibility
of losing one's car, have served to reduce the number of motorists who
are willing to take the chance of being caught driving drunk." On the
other hand, a civil liberties group has filed suit challenging the legality
and constitutionality of the New York City program. Citing some of the
same constitutional concerns, the House passed a Bill that would drastically
curtail the federal operation of the law.
Concerned about the the broad effect of federal forfeiture
laws, Henry Hyde (R-Ill., 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 the 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 traffic in 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 to prostitution,
and now for 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, in rem
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 abuse or circumvention
of Constitutional protections.
Categories of Property Subject to Forfeiture--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.
2. Proceeds from Illegal Activity
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.
3. Tools or Instrumentalities Used in Commission
of a Crime
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 (In Personam)
What is it?
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."
Depending on the crime, U.S. Customs procedures from Title 19 may also
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 opportunity must be
given to contest the forfeiture. Although the conviction requires
the government to prove guilt "beyond a reasonable doubt," the forfeiture
is subject to a lower burden--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.
What about third parties?
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 party 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 preponderance
of the evidence.
What defenses exist?
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.
Civil Forfeiture (In Rem)
What is it?
Unlike criminal forfeiture, civil forfeiture
proceeds against the property, not the person. In theory, civil
actions are remedial, not punitive like criminal proceedings.
By acting civilly, the government seeks to remedy a harm, through the
fiction of the property's "guilt."
The same statutes apply--18 U.S.C. §981 (parallels
18 U.S.C. §982) 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. When the government learns
of a crime, establishes probable cause of the property's involvement
(usually as an instrumentality), it may seize the property by executing
a warrant. A criminal charge or conviction is not required to
seize. Notice occurs through presentation of the warrant and
publication in a newspaper. If a party files a claim within
the answer period, a civil hearing commences. In uncontested
situations, the forfeiture may be handled administratively.
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
Since the government determines
which form of forfeiture to use, it is not surprising that
most are carried out using the civil (in rem) procedure.
What defenses exist?
Unless provided in statute (as in 18 U.S.C.
§981(a)(2)), innocence of the owner is typically not a defense.
Furthermore, courts interpret the statutory defenses stringently.
For instance, courts may apply an objective standard to determine if
the owner should have had knowledge of the property's illegal use,
rather require proof of actual knowledge. The owner may argue
that no crime ever occurred, that the government lacked probable cause,
or that the property is not closely enough connected to the crime to
be considered an instrumentality or proceeds.
Should any of these defenses succeed, the government
need simply return the property to the owner. It is not
liable to the owner damages caused by the property's detention, including
damages resulting during the original seizure or a failure to look
after the property while in government custody.
What would happen if H.R. 1658 were passed?
The whole character of civil forfeiture under Federal
law would be fundamentally altered. Most importantly, the federal
government would have to show by a "clear and convincing evidence"
standard that the property in question was eligible for forfeiture.
A property owner would be given 30 days to challenge the forfeiture,
not 10 days as currently allowed, and would not be required to put
up a 10% bond as precondition to the challenge. Judges would have
the authority to appoint counsel for indigent plaintiffs, and could
release the property to the owner if the owner could show that the
loss would be a substantial hardship for him or her. Furthermore,
the government would be liable if they negligently lost or damaged
the property, and some owners of seized cash could also receive interest
if they recover the money.
Suggestions or Comments?
This collection of material on the issue of forfeiture
is a work in progress. If you have suggestions of additional material
or sources, comments, or feedback of any kind, please email
Prepared by Brian J. Henchey, revised
and edited by Evan Williford, for the Legal Information Institute
Updated July 5, 1999
References and Suggested Readings
- Case Law
Palmyra, 25 U.S. (12 Wheat) 1 (1827)
- An early case in which the Supreme Court applies
an in rem theory to seize property without a criminal
conviction of the owner.
1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965)
- The Exclusionary Rule applies to block evidence
obtained illegally in forfeiture cases, providing a Fourth Amendment
limitation on forfeiture procedure.
Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)
- The Supreme Court finds that Due Process does
not require pre-seizure notice or hearing, and that the innocence
of the owner is not a general defense.
v. U.S., 506 U.S. 602 (1993)
- On the facts of the case, in rem forfeiture
of real property is punitive and violates the Eighth Amendment
Excessive Fines clause.
v. James Daniel Good Real Property, 510 U.S. 43 (1993)
- Both the Fourth and Fifth Amendment limit
the actions of the government in forfeiture proceedings, providing
owners with notice and other Due Process protections.
v. Michigan, 517 U.S. 1163 (1996)
- The Court holds that forfeiture is not a taking
under the Fourteenth Amendment and continues to confirm the
lack of "innocent owner" defense.
v. Ursery, 518 U.S. 267 (1996)
- A civil in rem forfeiture proceeding
following a criminal conviction is not punitive, and therefore
does not violate the Fifth Amendment Double Jeopardy clause.
v. Bajakajian, U.S. (1998)
- On the facts of the case, an in rem
forfeiture of cash violates the Eighth Amendment Excessive Fines
clause due to lack of proportionality with the conduct authorizing
- Law Journal Articles
- E. Blumenson & E. Nilsen, E., Policing for
Profit: The Drug War's Hidden Economic Agenda, 65 University of
Chicago Law Review 35 (1998)
- D. Boudreaux & A. Pritchard, Innocence Lost:
Bennis v. Michigan and the Forfeiture Tradition, 61 Missouri Law
Review 593 (1996)
- A.Nicgorski, Comment, The Continuing Saga of Civil
Forfeiture, the "War on Drugs," and the Constitution: Determining
the Constitutional Excessiveness, 91 Northwestern University Law
Review 374 (1996)