civil forfeiture

Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime. Under civil forfeiture laws, law enforcement agencies may seize cash, vehicles, real estate, and other assets believed to be involved in or obtained through illegal conduct. The proceeding is in rem, meaning it is brought against the property itself rather than against the owner (in personam). For this reason, civil forfeiture case names often appear strange, such as United States v. Eight Rhodesian Stone Statues because the property is the defendant.

Unlike criminal forfeiture, civil forfeiture does not require a criminal conviction. The government must generally prove by a preponderance of the evidence that the property is forfeitable. Once property is seized, the burden of proof often shifts to the owner to prove it was not involved in or derived from criminal activity. Critics argue this framework presumes guilt and undermines due process

Civil forfeiture is authorized under various federal statutes, primarily 18 U.S.C. §§ 981–985. It was historically rooted in English maritime law and gained prominence in the United States during Prohibition, when it was used to target assets involved in illegal alcohol production and distribution. Use of the practice expanded significantly during the 1980s in response to drug trafficking, particularly following the enactment of the Comprehensive Crime Control Act of 1984, which amended RICO and established the Equitable Sharing Program. This program allows federal and state agencies to share proceeds from forfeited property.

In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) to address due process concerns. CAFRA introduced procedural safeguards, including the innocent owner defense, a provision for owners to challenge excessive forfeitures, a mandate that the government pay legal fees to claimants who substantially prevail, and a preference for using criminal rather than civil forfeiture.

Despite reform efforts, civil forfeiture remains controversial. Proponents argue that it is a valuable tool for disrupting criminal enterprises and depriving offenders of illicit gains. Critics contend that it enables abuse by law enforcement, incentivizes profit-driven policing, and violates constitutional rights under the Fourth, Fifth, and Eighth Amendments.

The Supreme Court has addressed various constitutional issues related to civil forfeiture:

Austin v. United States (1993): Forfeiture may violate the Eighth Amendment's Excessive Fines Clause when the forfeiture does not serve any remedial purpose.
Bennis v. Michigan (1996): Held that the innocent owner defense is not required by Due Process.
United States v. Ursery (1996): Found that civil forfeiture does not violate the Double Jeopardy Clause.
United States v. Bajakajian (1998): Limited civil forfeiture when the amount seized is grossly disproportionate to the offense.
Timbs v. Indiana (2019): Incorporated the Excessive Fines Clause against the states, applying constitutional limits on civil forfeiture at both federal and state levels.
Culley v. Marshall (2024): Ruled that while the Due Process Clause requires a timely hearing, separate preliminary hearings are not required in civil forfeiture cases involving personal property.

In response to concerns about abuse, many states have reformed or abolished civil forfeiture laws, often requiring a criminal conviction before property can be seized. However, the Equitable Sharing Program created a loophole allowing local law enforcement to collaborate with federal agencies to bypass stricter state laws. In 2015, Attorney General Eric Holder restricted federal participation in civil forfeiture actions involving local agencies, limiting seizures without warrants or charges and curbing federal seizure of bank accounts without documented illegal activity.

[Last reviewed in July of 2025 by the Wex Definitions Team]

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