Academic journal article Harvard Law Review

How Crime Pays: The Unconstitutionality of Modern Civil Asset Forfeiture as a Tool of Criminal Law Enforcement

Academic journal article Harvard Law Review

How Crime Pays: The Unconstitutionality of Modern Civil Asset Forfeiture as a Tool of Criminal Law Enforcement

Article excerpt

In 1989 Attorney General Richard Thornburgh touted the benefits of civil asset forfeiture, describing how it enables "a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." (1) Nearly thirty years later, the symbiotic relationship between civil forfeiture and law enforcement continues to thrive. Civil forfeiture authorizes the government to seize property where it has probable cause to believe that the property is sufficiently connected to criminal activity. (2) The forfeiture proceeding operates against the property itself rather than pursuant to criminal charges against an individual, imposing fewer procedural burdens on the government. (3) It also prevents unjust enrichment where criminal prosecution is infeasible; (4) civil forfeiture has, for example, restored ancient artifacts to the countries from which they were looted (5) and recovered artwork stolen from Jewish families by Nazis. (6)

However, civil forfeiture has come under bipartisan fire with stories of abuse and claims that it provides law enforcement with excessive power. (7) People have lost their homes or vehicles after a third party misused the property without the owner's knowledge. (8) For example, Mary and Leon Adams resided in their West Philadelphia house for forty-six years when the police told them to vacate and initiated a civil forfeiture proceeding against the property because their adult son sold $60 worth of marijuana on the porch. (9) Tina Bennis faced a similar fate when the Supreme Court upheld the civil forfeiture of the car she jointly owned with her husband after he secretly had sex with a prostitute inside the vehicle. (10) The police also use minor traffic stops to seize cash or cars without so much as issuing a ticket. (11) Victor Ramos Guzman experienced this when he was pulled over for speeding and a state trooper seized $28,500; he was a church secretary en route to buy land for the church with the donated money and possessed no contraband. (12)

Some state reforms have sought to curb civil forfeiture, (13) and though the Supreme Court has historically upheld the practice, (14) in a recent statement respecting a denial of certiorari Justice Thomas signaled that modern civil forfeiture may be unconstitutional. (15) Nevertheless, the Trump Administration has fortified the practice by expanding equitable sharing, (16) a program that undermines state reforms by financially inducing local law enforcement to work with federal authorities and forfeit property pursuant to federal procedures. (17) In short, civil forfeiture heavily incentivizes federal and state agencies to participate in a system that has become dangerously entangled with criminal law, implicating a number of constitutional concerns.

This Note proceeds in three major parts. Part I provides an overview of the forfeiture regime and current civil forfeiture practices. Part II addresses constitutional considerations implicated by civil forfeiture. After reviewing Justice Thomas's statement, it explores how current practices have become entwined with criminal law enforcement and thus are unconstitutionally punitive. Part III discusses equitable sharing, focusing on its punitive and criminal enforcement underpinnings as well as its federalism implications.


A. The Modern Forfeiture Framework

Asset forfeiture is the seizure and retention of property that the government has reason to believe is sufficiently connected to criminal activity. (18) Forfeiture occurs pursuant to either state or federal law. While state and federal forfeitures have many commonalities, state provisions vary widely in the protections they offer property owners. (19)

There are three forfeiture methods: (20) criminal forfeiture, administrative forfeiture, and civil forfeiture. Criminal forfeiture occurs pursuant to an in personam action and requires a conviction. …

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