Academic journal article Texas Review of Law & Politics

Modern Civil Forfeiture Is Unconstitutional

Academic journal article Texas Review of Law & Politics

Modern Civil Forfeiture Is Unconstitutional

Article excerpt


Civil forfeiture is one of the most powerful law enforcement tools possessed by the government. It is a civil proceeding in which the government seizes property suspected of being involved in criminality.1 Through civil forfeiture, states and the federal government seize several billion dollars in property annually.2

Despite the prevalence of civil forfeiture and its long acceptance by the courts, its present-day iteration should be held unconstitutional. The Due Process Clause protects individuals from governmental deprivation of property without due process of law.3 Yet, civil forfeiture today often takes place without any process before or after the government seizes property.4 This violates the procedural due process rights guaranteed by the Fifth and Fourteenth Amendments, both of which require notice and a hearing before the deprivation of property. under civil forfeiture, seizure and confiscation of property can occur based merely upon a preponderance of evidence, and no process is required for the seizure to be permanent.5

Defenders of civil forfeiture offer two justifications for the practice. The first is historical. Civil forfeiture in the United States arose from English common law, and the practice has existed in various forms for thousands of years.6 Because civil forfeiture existed before, during, and after the ratification of the Constitution, it has been assumed to be constitutional and accepted in modernjurisprudence.7 But today's civil forfeiture bears only a slight resemblance to the civil forfeiture known at the time of the founding. Civil forfeiture today is used more often, and in more varied situations, to seize a wider range of property than its predecessor. Additionally, the historical policy for civil forfeiture-to enforce the law against distant ship owners who could not otherwise be reached8-does not apply to most civil forfeitures today. Finally, the incentive structures that underlie modern civil forfeiture are inconsistent with historical practice and encourage abuse by law enforcement.

The second justification for civil forfeiture is to provide government with needed revenue. Civil forfeiture generates revenue because the government keeps most of the value of the property seized. In theory, property taken from criminals serves to further the rule of law for the benefit of law-abiding citizens. But the ends do not justify the means. Constitutional rights limit government power, and the right to due process is no exception. Arguing that due process should not pose an obstacle to civil forfeiture because it is necessary to fund the government turns the Constitution on its head.

This Article argues that modern civil forfeiture is unconstitutional by describing how the practice has survived judicial scrutiny and explaining why it should be abolished. Part I discusses the history and evolution of civil forfeiture. Part II explains how civil forfeiture today differs from its predecessor, and why modern civil forfeiture is an unconstitutional violation of citizens' right to due process.

I. History of Civil Forfeiture

In modern civil forfeiture, the government files an in rem action against a person's property, such as money, a car, or a house.9 Instead of alleging that the owner has committed a crime, the government alleges that the property has violated the law and is guilty.10 Historically, governments have practiced both in rem and in personam forfeiture.

Most scholars agree that the practice of forfeiture found in English common law grew out of Biblical traditions.11 The Book of Exodus states: "if an ox gores a man or a woman, that they die, the ox shall be surely stoned, and its flesh shall not be eaten."12 The Talmudic commentary explains that the flesh of the animal is not to be eaten, so no one benefits from the animal.13

The biblical prohibition against profiting from a forfeited animal is consistent with two rationales found in English common-law forfeiture. …

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