Civil Asset Forfeiture

This post is written by Associate Editor Alex Wilcox. Opinions and views expressed herein are those of the writer alone.

Civil asset forfeiture is currently one of the most highly contested legal processes in the United States. The process allows for law enforcement agencies to seize and subsequently sell off real property suspected to be used in the commission of or garnered from illegal activity, without charging the owner criminally, much less obtaining a conviction. U.S. citizens who have had the displeasure of dealing with the process hate it and feel that it violates their rights granted to them by the Constitution, but lawmakers contend that it is the most direct and effective method at combatting the influence of narcotics and their purveyors in the United States.

The notion of the sovereign acquiring real property from its citizens without the need for a finding of criminal guilt is one that dates back, in common law, to England. The Crown would either seize the actual ships believed to be engaging in smuggling or piracy or create a cause of action in rem against the ship itself while the owner was out of the jurisdiction.[1] An early U.S. Congress used similar laws based on British admiralty laws to collect customs duties needed to fund the fledgling nation. By the Prohibition Era, forfeiture had taken a form similar to that of today, bootleggers’ cars, equipment, and money were seized by the government regardless of the guilt of the perpetrators. The war on drugs had begun in the 1980s and in 1984 the Comprehensive Crime Control Act was passed to allow federal and local law enforcement agencies to seize large sums of cash, drugs, and related items believed to be used in relation to crime, and to distribute the funds amongst the police bodies. The ability of policing agents being allowed to retain the vast majority of proceeds from civil forfeitures has raised the eyebrows of many who suspect this motivates officers to seize all they can and return only what proceeds the owner can afford to defend.

Today civil asset forfeiture is alive and well. Texas collected $53 million dollars in assets in 2015 through the legal process, but many Americans take issue with how the assets are seized.[2] In the Supreme Court Case U.S. v. Ursey, Justice Rehnquist defended the practice and made the clear ruling that civil asset forfeiture proceedings are against the personalty named in the complaint and not the actual owner.[3] This opinion has caused significant issues regarding innocent individuals feeling that their rights have been violated.

The Bennis v. Michigan case illustrates the opinion of a majority of states, that regardless of the co-owner of a cars criminal innocence, her car can be seized and sold off by the state without her having any part of the civil legal process.[4] The court made a point to discuss that due process was not violated through civil asset forfeiture because the proceeding was against personal property and not Mrs. Bennis, the owner of the car.[5] Her innocence in the criminal matter was wholly irrelevant because forfeiture is used as a remedial measure against the property and not a punitive one against the owner.[6] While Bennis may no longer be good law, it took until 2012 for Congress to allow protections for property owners that did not consent to illegal use of their property. This does not however address the issue regarding wholly innocent property owners perceived to be entangled in criminal acts having their property seized and being forced into the complex legal system to reclaim the bargain bin value of their property which is likely to have been long sold regardless.

While proponents of civil asset forfeiture are certainly correct that it can be used to appropriately and effectively to drain cartels’ coffers, those ends do not justify the means of innocent U.S. citizens having their property taken by the government without adequate legal recourse to make them entirely whole.


[1] David Benjamin Ross, Comment, Civil Forfeiture: A Fiction That Offends Due Process, 13 Regent U. L. Rev. 259, 262 (2000-2001).

[2] Tex. Atty. Gen., Ann. Rep. of Forfeits (2015).

[3] See United States v. Ursery, 518 U.S. 267, 270-72 (1996)

[4]See  Bennis v. Michigan,  516 U.S. 442 (1996).

[5] Id.

[6] Id.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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