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Forfeiture

Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the federal government's war on drugs since the ’80s. It is a potent deterrent as well as a revenue source on which law enforcement has grown increasingly dependent. However, it brings with it far fewer procedural safeguards than the criminal law.

Most forfeiture activity occurs under federal law, and most of that is connected to the traffic in illegal drugs. The Justice Department established the Assets Forfeiture Fund in 1985 and realized $27 million from drug-related forfeitures that year. By 1992, the total take had climbed to $875 million. Many states followed suit by establishing their own civil forfeiture programs. Cities and other municipal governments have cooperated in forfeiture actions under both federal and state drug laws. They have used such laws on their own to deal with local concerns ranging from unsafe housing to prostitution and now for the problem of drunk driving.

The authority to seize property in this way is not inherent. Rather, it is established by statute. It is constrained by those authorizing laws and by the Constitution. The expansion of forfeiture activity has not gone on without constitutional challenge. The Supreme Court heard at least half a dozen forfeiture cases during the ’90s, but its rulings have not done much to rein in the practice. This short survey of the law of forfeiture draws upon these Court decisions. Its introduction to the essential statutory provisions focuses on the federal statutes. State and local provisions tend to be similar.

Forfeiture takes two distinct forms: criminal and civil. Nearly all contemporary forfeiture is civil. Criminal forfeiture operates as punishment for a crime. It therefore requires a conviction, following which the state takes the assets in question from the criminal. Civil forfeiture rests on the idea (a legal fiction) that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the res, or the thing involved in some illegal activity specified by statute. Unlike criminal forfeiture, in rem forfeiture does not require a conviction or even an official criminal charge against the owner. This is the source of its attractiveness to law enforcement and its threat to those concerned about abuse or circumvention of constitutional protections.

The content on this page was developed in partnership with the Legal Information Institute, Cornell Law School.

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