Civil Forfeiture

Overview

Civil forfeiture occurs when the government seizes property under suspicion of its involvement in illegal activity. Such a proceeding is conducted in rem, or against the property itself, rather than in personam, or against the owner of the property; by contrast, criminal forfeiture is an in personam proceeding. For this reason, civil forfeiture case names often appear strange, such as United States v. Eight Rhodesian Stone Statues,1 and the property owner is a third-party claimant to the action while the property is the defendant. This form of forfeiture is codified in 18 U.S.C. §§ 981, 983984, and 985, as well as in 21 U.S.C. § 881.

The government does not have to charge the property owner with any specific crime in order to seize his property, and must prove only by a preponderance of the evidence that the property is legally forfeitable. After property has been seized, the burden of proof shifts to the owner, who must prove that the property was not involved in nor obtained as a result of illegal activity.

While the government views civil forfeiture as a powerful tool against the drug trade, organized crime, and political corruption, it is often criticized as an unconstitutional exercise of government power, in violation of the Fourth, Fifth, and Eighth Amendments, and as against a fundamental element of due process: the presumption of innocence. See:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Amendment IV

“No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Amendment V

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States (1895)

“While use of the particular phrase ‘presumption of innocence’—or any other form of words—may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard ‘against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’” Taylor v. Kentucky (1978)

History

Civil forfeiture in the United States is a holdover from English law. It was commonly used by the government during the Prohibition era to seize the property of bootleggers in an attempt to stymie the production and sale of illicit alcohol. When Prohibition ended, civil forfeiture was still available but not so commonly used until the War on Drugs began in the 1980’s. In response to increased concerns about the bustling drug trade and other criminal activity, Congress enacted the Comprehensive Crime Control Act of 1984. Title III of the law consisted of the Comprehensive Forfeiture Act of 1984, which amended the Racketeer Influence and Corrupt Organizations Statute (RICO) to clarify what constitutes forfeitable property, and create a rebuttable presumption of forfeitability. In other words, the government could seize first, and defend the forfeiture in court later. The Act also established the Equitable Sharing Program which allows the government to liquidate seized assets and retain the proceeds.

In 1993, the U.S. Supreme Court ruled in Austin v. United States that a forfeiture could be considered an excessive fine in violation of the Eighth Amendment, but declined to establish a multifactor test to determine whether a forfeiture is constitutionally excessive. Otherwise, the ruling upheld civil forfeiture as a practice, within undefined limits.

In 1996, the Court’s holding in United States v. Ursery established that the government may seize a person’s property due to its involvement in a crime in addition to prosecuting them for that crime without violating the Double Jeopardy Clause of the Fifth Amendment.

In 1998, the Court continued to uphold civil forfeiture in United States v. Bajakajian, but limited it if the amount seized would be “grossly disproportional to the gravity of a defendant’s offense,” in violation of the Excessive Fines Clause of the Eighth Amendment.

In 2000, Congress enacted the Civil Asset Forfeiture Reform Act (CAFRA) “to provide a more just and uniform procedure for Federal civil forfeitures.” CAFRA amended a variety of U.S.C. titles and chapters, and included, among other things:

  • An “innocent owner defense”
  • A provision for a victim to petition the court when the forfeiture is excessive
  • A requirement that the government pay reasonable litigation costs incurred by a claimant who “substantially prevails”
  • Procedure for the civil forfeiture of real property
  • Fugitive disentitlement to court resources
  • An encouragement to use criminal rather than civil forfeiture

There have been bipartisan efforts since CAFRA to further reform federal civil forfeiture, but as of July 2017, none have been enacted.2

In recent years, many states have passed laws to limit the use of civil forfeiture, and some prohibit it altogether unless the owner has already been criminally convicted for the crime that justifies seizure. The Equitable Sharing Program, however, provided a loophole that allowed state and local law enforcement agencies to share in the liquidated proceeds of civil forfeiture cases they may hand over to federal law enforcement. To combat this loophole in 2015, Attorney General Holder unilaterally barred federal law enforcement from collaborating with local and state police to take on forfeiture cases where local and state law disallows it without warrants or criminal charges.3 He also limited the federal seizure of bank accounts only to instances where serious illegal transactions have been documented.4

Current Events

In March 2017, the Department of Justice Office of the Inspector General released a report reviewing the DOJ’s oversight of civil forfeiture activities. The report identified specific weaknesses in the DOJ’s oversight, including an insufficient effort to determine “whether seizures benefit criminal investigations or the extent to which they may pose potential risks to civil liberties,” and an inadequacy in policy and training to ensure operational consistency. To remedy these weaknesses, the report recommends that the relevant departments of law enforcement:

  1. Develop ways to collect relevant data related to seizure and forfeiture activities sufficient to identify and evaluate whether seizures advance or are related to federal investigations.
  2. Review seizure practices to determine whether more-specific policy guidance and/or training is needed to ensure consistency in seizure operations.
  3. Ensure that state and local task force officers receive training on federal asset seizure and forfeiture laws and component seizure policies before they conduct or participate in federal seizures.
  4. Monitor the effects of the Attorney General’s 2015 Order that eliminated most types of federal adoptions of state and local seizures, and seek to mitigate any negative effects on law enforcement cooperation.5

In July 2017, Attorney General Sessions reversed the 2015 directive that prevented local law enforcement from circumventing state restrictions on civil forfeiture.6 However, this new directive includes changes meant to prevent abuse of the practice, such as requiring more detail from police agencies about probable cause justifying a seizure, expedited notice to property owners of their rights and the status of their belongings after a seizure, and limited ability to seize property less than $10,000 without a state warrant or other enumerated exceptions.7 Nevertheless, critics say the safeguards are ineffective.8 Even Supreme Court Justice Clarence Thomas commented in a 2017 denial of certiorari on a civil forfeiture case that the civil forfeiture system “has led to egregious and well-chronicled abuses” which “frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”9

Pending Legislation

If passed, the Fifth Amendment Integrity Restoration Act of 2017 (FAIR Act) would amend civil forfeiture sections of the U.S. Code to:

  • replace the standard of proof “a preponderance of the evidence” with the stricter “clean and convincing evidence;”
  • disallow the equitable sharing of forfeiture proceeds with “any other Federal agency” or “any State or local law enforcement agency which participated directly,” effectively killing the Equitable Sharing Program;
  • and establish a multifactor test to determine the whether the forfeiture is proportionate to the gravity of the offense.

Alternately, if passed, the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act of 2017 (DUE PROCESS Act) would amend civil forfeiture sections of the U.S. Code to:

  • shorten the amount of time between forfeiture and when the government is required to give notice to the property’s owner;
  • add “initial hearings” to the civil forfeiture judicial procedure;
  • replace the standard of proof “a preponderance of the evidence” with the stricter “clean and convincing evidence;”
  • grant reasonable attorneys fees to claimants who prevail in a settlement rather than in court—and the payment of fees may not be waived as part of any settlement;
  • define what counts as a claimant prevailing;
  • establish an annual audit of civil forfeitures by the DOJ Inspector General; require the Attorney General to establish and maintain a publicly available database describing all federal civil forfeitures, including statistical breakdowns of forfeitures by agency and where money given from the Asset Forfeiture Fund or Treasury Forfeiture Fund goes;
  • and establish a multifactor test to determine the whether the forfeiture is proportionate to the gravity of the offense.

While the two bills are largely similar, one important difference exists: the FAIR Act effectively ends equitable sharing while the DUE PROCESS Act attempts only to curb its abuse.

Last updated in July of 2017 by Stephanie Jurkowski.