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A Broadening Consensus to Narrow Asset Forfeiture
Asset forfeiture has a long history in our legal system. We inherited it from the British, who used forfeiture as a weapon to combat piracy and customs offenses on the high seas. Modern asset forfeiture has expanded its reach from its maritime origins to a broad range of crimes in a three-part system of criminal, civil and administrative forfeiture. The three systems have varying procedures, but all allow the government to forfeit property that has been illegally obtained or used.
The U.S. Supreme Court has recognized that asset forfeiture “statutes serve important governmental interests such as 'separating a criminal from his ill-gotten gains,' 'returning property, in full, to those wrongfully deprived or defrauded of it,' and 'lessening the economic power' of criminal enterprises.” Honeycutt v. United States, 198 L. Ed. 2D 73 (U.S. 6/5/17) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629-30 (1989)). [For more about Honeycutt, see In the Courts, infra.] Today, federal and state governments forfeit billions of dollars in private property.
But as forfeiture moved into our neighborhoods and financial system, it provoked a growing opposition. This opposition is noteworthy for coming from across the political spectrum. Such politically diverse organizations as the Heritage Foundation, the Cato Institute, the American Civil Liberties Union (ACLU) and the National Association of Criminal Defense Lawyers have all expressed concerns about the perceived abuses of asset forfeiture. These concerns include the perceived lack of adequate procedural protections for property rights, and the financial incentives for law enforcement agencies to overreach in taking property for their own use. Opponents have leveled criticism particularly at civil forfeiture laws which authorize “in rem” actions against the property itself. Civil forfeiture allows for taking property on a lower preponderance of the evidence standard, and regardless of whether the owner has been charged with or convicted of a crime.
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