civil forfeiture

Civil forfeiture allows the government (typically the police) to seize — and then keep or sell — any property that is allegedly involved in a crime or illegal activity. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government. The government does not have to charge the property owner with any specific crime in order to seize the property, and must prove only by a preponderance of the evidence that the property is legally forfeitable. After property has been seized, the burden of proof shifts to the owner, who must prove that the property was not involved in nor obtained as a result of illegal activity. While the government views civil forfeiture as a powerful tool against the drug trade, organized crime, and political corruption, it is often criticized as an unconstitutional exercise of government power, in violation of the Fourth, Fifth, and Eighth Amendments, and as against a fundamental element of due process.

Such a proceeding is conducted in rem, or against the property itself, rather than in personam, or against the owner of the property. For this reason, civil forfeiture case names often appear strange, such as United States v. Eight Rhodesian Stone Statues because the property is the defendant. 

Civil forfeiture is codified in 18 U.S.C. §§ 981, 983, 984, and 985, as well as in 21 U.S.C. § 881.

Proponents argue that it is effective in thwarting criminal organizations by efficiently and directly harming suspected criminals economically while helping law enforcement financially. Critics argue that innocent owners can become entangled in the process where they are presumed guilty instead of being presumed innocent. Critics argue that the incentives lead to corruption and law enforcement misbehavior and abuse.

The Supreme Court has addressed the constitutional implications of civil forfeiture in several cases. 

• In 1993, the U.S. Supreme Court ruled in Austin v. United States that a forfeiture could be considered an excessive fine in violation of the Eighth Amendment but declined to establish a multi-factor test to determine whether a forfeiture is constitutionally excessive. Otherwise, the ruling upheld civil forfeiture as a practice, within undefined limits. 
• In 1996, the Court’s holding in United States v. Ursery established that the government may seize a person’s property due to its involvement in a crime in addition to prosecuting them for that crime without violating the Double Jeopardy Clause of the Fifth Amendment. 
• Also in 1996, the Supreme Court in Bennis v. Michigan held that the innocent owner defense is not constitutionally mandated by Fourteenth Amendment Due Process in cases of civil forfeiture. 
• In 1998, the Court continued to uphold civil forfeiture in United States v. Bajakajian but limited it if the amount seized would be “grossly disproportionate to the gravity of a defendant’s offense,” in violation of the Excessive Fines Clause of the Eighth Amendment. 

Civil forfeitures are subject to the "excessive fines" clause of the U.S. Constitution's Eighth Amendment, both at a federal level and, as determined by the 2019 Supreme Court case, Timbs v. Indiana.

Civil forfeiture in the United States is a holdover from English law. It was commonly used by the government during the Prohibition era to seize the property of bootleggers in an attempt to stymie the production and sale of illicit alcohol. When Prohibition ended, civil forfeiture was still available but not so commonly used until the War on Drugs began in the 1980’s. In response to increased concerns about the bustling drug trade and other criminal activity, Congress enacted the Comprehensive Crime Control Act of 1984. Title III of the law consisted of the Comprehensive Forfeiture Act of 1984, which amended the Racketeer Influenced and Corrupt Organizations Statute (RICO) to clarify what constitutes forfeitable property, and create a rebuttable presumption of forfeit-ability. In other words, the government could seize first, and defend the forfeiture in court later. The Act also established the Equitable Sharing Program which allows the government to liquidate seized assets and retain the proceeds.

In 2000, Congress enacted the Civil Asset Forfeiture Reform Act (CAFRA) “to provide a more just and uniform procedure for Federal civil forfeitures.” CAFRA amended several federal civil forfeiture statutes, and included better protections for those subject to civil forfeitures. These include, an “innocent owner defense,” a provision for a victim to petition the court when the forfeiture is excessive, a requirement that the government pay reasonable litigation costs incurred by a claimant who “substantially prevails,” procedural standards for the civil forfeiture of real property, and an encouragement to use criminal rather than civil forfeiture. 

In recent years, many states have passed laws to limit the use of civil forfeiture, and some prohibit it altogether unless the owner has already been criminally convicted for the crime that justifies seizure. The Equitable Sharing Program, however, provided a loophole that allowed state and local law enforcement agencies to share in the liquidated proceeds of civil forfeiture cases they may hand over to federal law enforcement. To combat this loophole in 2015, Attorney General Holder unilaterally barred federal law enforcement from collaborating with local and state police to take on forfeiture cases where local and state law disallows it without warrants or criminal charges. Attorney General Holder also limited the federal seizure of bank accounts only to instances where serious illegal transactions have been documented. 

[Last updated in August of 2022 by the Wex Definitions Team]