Forfeiture refers to the government's uncompensated confiscation of property that is implicated in crime. The property may be used to commit crime, be its product, or be obtained with its fruits. A home, for example, that is bought with money from a robbery or illegal drug sales is subject to forfeiture. The government may prosecute the culprit criminally and, on his conviction, confiscate his property as part of his punishment, or it may proceed against the property in a civil suit by means of a procedure that is at war with the Constitution.
Unlike eminent domain, forfeiture excludes any compensation for the confiscated property. In the case of civil forfeiture, unfairness and injustice always prevail. "Civil forfeiture," declared the president of the National Association of Criminal Defense Attorneys, "is essentially government thievery." If the civil forfeiture laws of the states and the federal government are a license to steal, the cops are the robbers. Police shake down suspects, confiscate their cash, and make no arrests. At airports, law enforcement officers routinely take cash from travelers who supposedly fit a drug-smuggler profile or otherwise look suspicious. The promise of forfeiture lures officers and prosecutors to seize what they can, because they are able to keep for law enforcement purposes most of what they seize, or they can use the assets for whatever they need—weapons, helicopters, cellular phones, salary increases, bulletproof vests, or new police cars with which to conduct the war against crime.
About 80 percent of all civil forfeiture cases are uncontested, quite likely because most of the suspects are in fact guilty. But many forfeiture victims are innocent. One Floridian, for example, bought a new sailboat for $24,000. Customs officers, who often suspect boat owners of smuggling drugs, seized his sailboat and conducted a sevenhour search, during which time they ripped out its woodwork, smashed its engine, ruptured its fuel tank, and drilled holes in its hull, many below the water line. The officers, who found no drugs, damaged the boat beyond repair, forcing the innocent owner to sell it for scrap. Law enforcement officers seize money, cars, houses, land, and businesses, yet the victims often cannot afford to contest a forfeiture because of the high cost of lawyers. Legal fees can easily run to considerably more than the value of most forfeitures. As one defense attorney declared, "Sue to get your car back? Forget it. If they take your car, it's gone. Unless I get pissed off and take a case for the sweet pleasure of revenge, I'm not going to handle anything less than $75,000 in assets, from which I'd get one-third." A Connecticut family, whose grandson kept controlled substances in his room, lost their home and denounced the government's greed as "Nazi justice." A man who ran an air charter service innocently carried a passenger whose luggage contained drug money. As a result of the search by drug enforcement agents, who caused damage of at least $50,000 for which the Drug Enforcement Agency (DEA) is not liable, the owner of the charter service had to declare bankruptcy, lost his business, and became a truck driver.
Civil forfeitures have a peculiar character—the government sues the supposedly guilty property, not its owners. Thus, in United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle (1966), the government sued the rifle that was used to assassinate President john f. kennedy. As the Court observed, the law ascribes "to the property a certain personality, a power of complicity and guilt in the wrong." In another case the Court explained, "Traditionally, forfeiture actions have proceeded upon the fiction that the inanimate objects themselves can be guilty of wrongdoing. Simply put, the theory has been that if the object is 'guilty,' it should be held forfeit." The innocence of its owner is irrelevant as a matter of law. The guilt attaches to the thing by which a wrong has been done, and the government profits from the wrong. Forfeitures are an important source of government revenue, and because no person is found guilty in a civil forfeiture case, the forfeiture is held not to constitute punishment—a blatant misconception. A tiny trace of marijuana suffices to justify the forfeiture of a vessel, vehicle, or home.
Civil forfeiture is attractive to the nation's lawmakers because it is much more likely to be successful than a criminal forfeiture proceeding in which the defendant has the benefits of all the rights of the criminally accused guaranteed by the Constitution, plus the presumption that he is innocent until the government proves otherwise beyond a reasonable doubt. In a civil forfeiture case, the government does not have to establish the person's guilt; he is not a party to the case. The obligation of the government is simply to show that a probable causal connection exists between the property and the commission of a crime. Hearsay, circumstantial evidence, and anything more than a hunch can be used to establish probable cause. That done, the burden shifts to the owner of the property or to its claimant to establish by a preponderance of evidence that the property is "innocent." Owners or claimants have no way to exercise their constitutional rights. In civil forfeitures, the property that is sued has no rights. Civil forfeiture is swift, cheap, and pretty much a sure thing from the government's standpoint.
The leading American case, decided in 1974, involved the Pearson Yacht Company, which had rented its vessel to someone who left the remains of one marijuana cigarette, which the state discovered on searching the ship. The company had no knowledge that its yacht had been used in violation of state law, yet the Court held against the company and in favor of the forfeiture. The Court, ruling that the innocence of the company mattered not at all, reasoned that the law proceeded not against the owner of the property but against the yacht itself, because the yacht was the guilty party. Intellectual flimflammery characterizes the law of civil forfeiture.
Leonard W. Levy
Levy, Leonard W. 1996 A License to Steal: The Forfeiture of Property. Chapel Hill: University of North Carolina Press.