Jonah Patel
Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime. This process has been criticized for violating the Due Process Clause of the Constitution, as owners have limited means to challenge the seizures. Additionally, it has been argued that civil forfeiture violates the Eighth Amendment's Excessive Fines Clause when the forfeiture does not serve any remedial purpose. The Supreme Court has addressed these constitutional issues in several cases, including Austin v. United States (1993) and Timbs v. Indiana (2019), but the practice of civil forfeiture remains controversial and continues to be debated.
| Characteristics | Values |
|---|---|
| Amendment violated | Eighth Amendment |
| Clause violated | Excessive Fines Clause |
| Other possible amendments violated | Fifth Amendment, Fourteenth Amendment, Fourth Amendment |
| Clause in Fifth Amendment violated | Takings Clause, Due Process Clause |
| Clause in Fourteenth Amendment violated | Due Process Clause |
| Clause in Fourth Amendment violated | Search and Seizure Clause |
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What You'll Learn
Excessive fines and punishment
Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime. Law enforcement agencies may seize cash, vehicles, real estate, and other assets believed to be involved in or obtained through illegal conduct.
The practice has been criticised for enabling abuse by law enforcement, incentivising profit-driven policing, and violating constitutional rights. One such violation is the Eighth Amendment's protection against excessive fines and cruel and unusual punishments. The Eighth Amendment, adopted in 1791, states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted".
The Supreme Court has addressed the application of the Eighth Amendment to civil forfeiture in several cases. In Austin v. United States (1993), the Court ruled that forfeiture may violate the Eighth Amendment's Excessive Fines Clause when it does not serve any remedial purpose. This ruling was upheld in Timbs v. Indiana (2019), which incorporated the Excessive Fines Clause against state and local governments, applying constitutional limits on civil forfeiture at both federal and state levels.
In United States v. Bajakajian (1998), the Supreme Court limited civil forfeiture when the amount seized was grossly disproportionate to the offence. This was further elaborated in Harmelin, where Justice Scalia stated that "the Eighth Amendment contains no proportionality guarantee" and that what constitutes 'cruel and unusual' punishment should be determined without reference to the specific offence.
Despite these rulings, civil forfeiture remains a controversial practice, with critics arguing that it is devoid of due process and incentivises perverse behaviour by law enforcement.
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Lack of due process
Civil forfeiture in the United States has a long history, dating back several hundred years, with roots in British maritime law. Under civil forfeiture laws, law enforcement agencies can seize cash, vehicles, real estate, and other assets suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime.
The process has been criticised for its lack of due process, with critics arguing that it violates the Due Process Clause of the Constitution. This is because owners have limited means to challenge the seizures, and the burden of proof often shifts to them to prove their innocence and show that they were unaware of any criminal activity. This presumption of guilt undermines due process and shifts the burden of proof onto victims, who are considered guilty until proven innocent.
The lack of due process in civil forfeiture cases is further exacerbated by the absence of legal representation for defendants, as there are no attorneys provided for them in the civil justice system. This means that individuals who cannot afford an attorney have little chance of recovering their property. The process also lacks transparency, as seizures are often done through sealed documents, and there is no presumption of innocence for the property in question.
In response to concerns about abuse and lack of due process, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) in 2000. This legislation introduced procedural safeguards, including the innocent owner defence, the right for owners to challenge excessive forfeitures, and a mandate for the government to pay legal fees to successful claimants. Despite these reforms, civil forfeiture remains controversial, with critics arguing that it still enables abuse by law enforcement and violates constitutional rights.
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Double jeopardy
Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime. The proceeding is in rem, meaning it is brought against the property itself rather than the owner (in personam).
The Fifth Amendment of the U.S. Constitution contains the Double Jeopardy Clause, which protects against being prosecuted twice for the same crime. Double jeopardy generally covers criminal punishment, not all sanctions. In certain cases, civil penalties may qualify if they are punitive.
In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the Supreme Court held that the prohibition on double jeopardy extends to civil sanctions that are applied in a punitive manner. In United States v. Halper, 490 U.S. 435 (1989), the Court ruled that a civil sanction under the False Claims Act qualifies as punishment if it is overwhelmingly disproportionate in compensating the government for its loss, and if the disproportionate award can be explained only as a deterrent or as having a retributive purpose.
In 1996, the Supreme Court ruled in United States v. Ursery that civil asset forfeitures did not constitute a "punishment" for purposes of the Double Jeopardy Clause because civil asset forfeiture is a remedial civil sanction, and not a punitive criminal sanction. However, critics argue that civil forfeiture enables abuse by law enforcement, incentivizes profit-driven policing, and violates constitutional rights.
In One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972), the Supreme Court held that Congress may impose both a criminal and a civil sanction for the same act or omission because the Double Jeopardy Clause prohibits only punishing twice, or attempting a second time to punish criminally, for the same offense.
The dual sovereignty doctrine provides an exception to the principle of double jeopardy, allowing the federal and state governments to bring successive prosecutions for offenses arising from the same conduct.
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Racial profiling
Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged or convicted of a crime. This process has been criticised for enabling abuse by law enforcement, incentivising profit-driven policing, and violating constitutional rights.
Since the response to the 9/11 attacks, Arab, Middle Eastern, Muslim, and South Asian communities have been subjected to discriminatory profiling by federal law enforcement, local police, and border officers. Additionally, Asian Americans, particularly Chinese American scientists and academics, have been targeted based on their race, ethnicity, and religious beliefs. This has resulted in an increase in hate crimes and racial profiling of people of colour.
The American Civil Liberties Union (ACLU) has been actively working to address racial profiling through litigation, public education, and advocacy. They have lobbied for the passage of data collection and anti-profiling legislation and have litigated on behalf of victims of racial profiling by the police, government agencies, and airlines.
In Texas, the ACLU reached a settlement in the "Highway Robbery" cases, where police in Tenaha and Shelby County seized assets from innocent Black and Latino drivers, threatening them with baseless criminal charges. The settlement included reforms such as prohibiting the use of dogs during traffic stops and requiring officers to provide a reason for seizing property.
The connection between civil forfeiture and racial profiling has been noted, with minority individuals being targeted by police due to racial profiling during traffic stops, airport searches, and drug arrests, resulting in the seizure of property under civil forfeiture laws.
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Perverse incentives for police
Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime. Law enforcement agencies can seize cash, vehicles, real estate, and other assets believed to be involved in or obtained through illegal conduct. The proceeding is in rem, meaning it is brought against the property itself rather than the owner.
Critics of civil forfeiture argue that the system creates perverse incentives for police to engage in "predatory" behavior. Since police departments can keep a substantial portion of the profits from seized assets (often 90% or more), there is a strong incentive to seize property even when there is only a loose connection to criminal activity. This profit motive has been described as the "rotten core of forfeiture abuse."
In some cases, police have been accused of presuming that activity is illegal in order to justify seizing cash and other assets. Critics argue that this focus on seizing cash and assets can distort police priorities, leading them to be more interested in seizing cash than in addressing illegal activity directly. For example, in the context of the War on Drugs, civil forfeiture may incentivize police to prioritize seizing cash from suspected drug traffickers rather than disrupting criminal networks or seizing illegal drugs.
A 2020 study found that an increase in revenue from fines, fees, and forfeitures was associated with decreases in clearance rates for violent and property crimes, suggesting that the pursuit of revenue can distract law enforcement from their core mission of protecting the public and solving crimes. Civil forfeiture has also been criticized for shifting the burden of proof to victims, who are often presumed guilty until they can prove their innocence.
In response to these concerns, legislation such as the Civil Asset Forfeiture Reform Act (CAFRA) has been introduced to address due process concerns and raise the standard of proof necessary for the government to seize property. However, despite these reform efforts, civil forfeiture remains controversial, and critics continue to argue that it enables abuse by law enforcement and incentivizes profit-driven policing.
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Frequently asked questions
Civil forfeiture is a legal process that allows the government to seize property suspected of being connected to criminal activity, even if the property owner is never charged with or convicted of a crime.
Civil forfeiture has been criticised for violating the Due Process Clause of the Constitution, as owners have few means to challenge seizures. It also seems to violate the Takings Clause of the Fifth Amendment, which states that private property cannot be taken for public use without just compensation.
Critics argue that civil forfeiture enables abuse by law enforcement, incentivises profit-driven policing, and violates constitutional rights. It has also been criticised for targeting minorities disproportionately and shifting the burden of proof onto victims to prove their innocence.
In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) to address due process concerns and introduce procedural safeguards. In 2014, Senator Rand Paul introduced the FAIR (Fifth Amendment Integrity Restoration) Act to restore the Due Process Clause and require law enforcement to prove their case before seizing property.
The Supreme Court has generally upheld the principle of civil forfeiture. However, in cases such as Austin v. United States (1993), Timbs v. Indiana (2019), and United States v. Bajakajian (1998), the Court has ruled that civil forfeiture is subject to limitations, including the Excessive Fines Clause of the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment.
