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 1980s. The U.S. Department of Justice established the Assets Forfeiture Fund in 1985 and seized $27 million from drug-related forfeitures that year. As the dollar values of seized assets skyrocketed during the next decade, many states followed suit by establishing their own civil forfeiture programs. Cities and other municipal governments regularly cooperate in forfeiture actions under both federal and state drug laws, and have enacted their own forfeiture laws to address a wide range of local concerns, ranging from unsafe housing to prostitution and drunk driving.
The government’s authority to seize property in this way is not inherent, but is generally 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.
The Different Forms of Forfeiture
Forfeiture takes two distinct forms: criminal and 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.
Nearly all contemporary forfeiture is civil. Civil forfeiture rests on the idea that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the property, or the thing involved in some illegal activity specified by statute. Unlike criminal forfeiture, civil 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.