Academic journal article American University Law Review

Clear and Convincing Civility: Applying the Civil Commitment Standard of Proof to Civil Asset Forfeiture

Academic journal article American University Law Review

Clear and Convincing Civility: Applying the Civil Commitment Standard of Proof to Civil Asset Forfeiture

Article excerpt

Introduction

The abuses of civil asset forfeiture are well-known, well-documented, and well-ridiculed.1 Indeed, in the modern political climate where partisans on either side find little to agree about, both the Democratic Party and the Republican Party unite in criticism of civil asset forfeiture.2 Many have convincingly argued that civil asset forfeiture is an unconstitutional practice;3 however, the Supreme Court explicitly rejected that argument.4 In light of the Court's determination that civil asset forfeiture is constitutional, this Comment approaches the discussion with a discrete focus on the standard of proof in civil in rem forfeiture proceedings.5 Civil in rem forfeiture is a civil action filed by the government against property rather than against a specific person.6 Comparing civil in rem forfeiture to civil commitment, this Comment argues that the standard of proof for civil in rem forfeiture proceedings should be the same clear and convincing evidence standard the supreme court requires in civil commitment proceedings.

civil commitment and civil asset forfeiture are analogous proceedings. Both are controversial government actions that allow for significant deprivations.7 Both have a long history in England and the United States.8 Both have been found constitutional in part because of their historical origins.9 Both have expanded beyond a historically limited practice.10 Both are authorized under state and federal statutes.11 Both are civil proceedings with a quasi-criminal element.12 However, civil commitment requires the higher evidentiary standard of proof, clear and convincing evidence, while civil asset forfeiture remains permissible under the lesser preponderance of the evidence standard.13

The evidentiary standard of proof is an essential due process safeguard against erroneous deprivations and is not a mere matter of semantics.14 Indeed, a standard of proof is the only thing standing between an individual and involuntary commitment or forfeiture of his property.15 Courts decide what level of proof satisfies due process.16 Using the Supreme Court's framework in Mathews v. Eldridge,17 as applied to civil commitment in Addington v. Texas,1 this Comment argues that due process demands judges in civil in rem forfeiture proceedings, like those in civil commitment proceedings, apply the higher clear and convincing standard of proof.19

Part I provides an overview of civil asset forfeiture, civil commitment, and standards of proof.20 it identifies and explores contraband, facilitating property, and proceeds forfeiture and traces the historical expansion of each.21 It considers civil in rem forfeiture's evolution to a modern practice that allows forfeiture of criminal activity proceeds.22 It likewise surveys civil commitment's historical origins and evolution.23 Finally, it explores the applicable standards of proof by explicitly examining the purpose of the clear and convincing standard.24

Part II uses the Mathews factors, as applied to civil commitment in Addington, to show that the preponderance standard currently used in civil in rem forfeiture proceedings does not satisfy Fifth Amendment Due Process requirements.25 Finally, this Comment concludes that the clear and convincing evidentiary standard should be applied in all federal civil in rem forfeiture proceedings. 26

I. Background

This section provides an overview of federal civil asset forfeiture, civil commitment, and the clear and convincing evidentiary standard of proof in the United States. Section I.A. focuses on federal civil asset forfeiture. Because the Supreme Court justified the constitutionality of civil forfeiture by relying on the limited historical practice that existed prior to the Constitution, Section I.A.1. charts the extensive history of civil asset forfeiture practices from Medieval England to the modern United States.27 Section I. A. 2. delineates the categories of property that may be forfeited under federal law, while Section I. …

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