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Civil Forfeiture: One Of Government's Stiffest Penalties Despite Constitutional And Regulatory Limitations
Scott Driggs
Advanced Legal Research Pathfinder


Forfeiture laws allow the government to take the property of criminals who commit, or at least allegedly commit, various crimes. Some forfeiture laws let the government take a criminal's property only after conviction beyond a reasonable doubt. These statutes are commonly referred to as criminal forfeiture laws. On the other hand, civil forfeiture laws make way for the government to gain possession of a person's property without any determination as to the guilt of that person. Civil forfeiture proceedings are managed by a "clear and convincing" standard of proof rather than the reasonable doubt standard of criminal forfeiture actions. Moreover, the only thing that must be proved by clear and convincing evidence is that the property in question has a connection with the alleged criminal activity.

The theory behind civil forfeiture is that the property devoted to an unlawful purpose is tainted as an instrumentality of crime and must therefore be condemned. In spite of this noble theory, administrative regulations and constitutional restrictions on civil forfeiture laws abound. For instance, the Supreme Court has extended all of the rights of the Fourth Amendment, the due process rights of the Fifth amendment, and the excessive fines and penalties protection of the Eighth Amendment, to civil forfeiture defendants. The First Amendment also stands as a barrier to law enforcement agents who want to forfeit expressive materials. However, civil forfeiture laws are apparently becoming more potent and are being used more frequently.

In response to the growing potency and frequency of civil forfeiture's application, the courts are growing more wary. As the United States Court of Appeals for the Second Circuit stated, "While congress may have intended civil forfeiture to be a 'powerful weapon in the war on drugs', it would, indeed, be a Pyrrhic victory for the country, if the government's relentless and imaginative use of that weapon were to leave the constitution itself a casualty." United States v. Lasanta, 978 F.2d 1300, 1305 (2d Cir. 1992) (internal citations omitted).


The purpose of this pathfinder is to explain methodologies for research and to gather the most relevant and helpful sources for understanding the regulatory and constitutional limitations on civil forfeiture laws. The scope of this pathfinder is confined to federal law and civil, rather than criminal, forfeiture. Moreover, I have focused on the more common civil forfeiture laws. For example, I have not devoted any of this pathfinder to forfeiture laws established to protect certain mammals, birds and fish.

I. Statutes

In order to know whether a law is constitutional, it is important to know what the law says. There are various methodologies for finding relevant statutes. One way is to look in the index of the United States Code Annotated. The best index category for this pathfinder was Fines, Penalties, and Forfeitures. However, this category contained hundreds of statute citations, most of which were irrelevant.

A better methodology for this pathfinder was to use Westlaw and Lexis. In Westlaw, under the USCA database, I used the following query: civil w/3 forfeiture. This query was used to pick up statutes that include references to "civil and criminal forfeiture." In Lexis, I used the CITES library and the USCODE file and searched under "civil forfeiture." Both Westlaw and Lexis retrieved few enough documents that I could scroll through their citation displays and pick out the most relevant statutes. Having looked through a number of statutes, I determined that the following four statutes are some of the most commonly cited and they provide a good foundation for understanding the structure of civil forfeiture laws:

A. 21 U.S.C. 881 is by far the most often used civil forfeiture statute. This statute authorizes civil forfeitures (as well as criminal forfeitures) for drug crimes. Items which can be forfeited under this section include illegal narcotics, conveyances used to transport the drugs, proceeds of drug sales in whatever form they may take, and other items that are associated with illegal narcotic activity.

B. 18 U.S.C. 981 provides generally for civil forfeiture of real and personal property which has a connection with or is derived from certain white collar crime activities. 981 serves as the penal provision for several statutes which criminalize financial mishandling.

C. 18 U.S.C. 2254 also serves as a penal provision for several statutes. It applies to crimes of sexual exploitation and other abuse of children. It allows civil forfeiture of child pornography as well as other things associated or derived from the crimes.

D. 18 U.S.C. 984 is a recently enacted civil forfeiture provision. It provides for the forfeiture of fungible property, i.e., funds in bank accounts and other financial institutions.

Constitutional Amendments I, IV, V, VIII, and XIV, place various limitations on the application of civil forfeiture laws. The First Amendment comes into play where expressive materials are forfeited. The Fourth Amendment applies where initial searches and seizures have been violative. Fifth Amendment due process rights apply to some extent. The Eighth Amendment's Excessive Fines and Penalties clause was recently made applicable to civil forfeiture proceedings by the Supreme Court. And the Fourteenth Amendment imposes these limitations on the states.

II. Legislative History

As is often the case, their was very little legislative history that was actually on point. Although my research directed me to many legislative history provisions, a quick review revealed the relevance or irrelevance of each.

My methodology in this area was relatively simple. Each time I found a relevant statute in the U.S. Code Annotated ("U.S.C.A."), I looked at the end of the statute to the "Legislative History" heading. The U.S.C.A. provides a list of public law numbers and corresponding citations to the United States Code of Congressional and Administrative News ("USCCAN"). I looked at each of the USCCAN cites, and was able to quickly determine any relevance.

Another good source to use is the Congressional Information Source Index ("CIS/Index"). It is more burdensome than merely looking in the annotations, but it is also more complete. The CIS/Index can be accessed topically or by bill number.

My review of legislative history provided only two references that are even marginally helpful.

1. The legislative history of Public Law No. 98-473 (21 U.S.C. 881) is contained in 1984 U.S. Code Cong. and Adm. News, p. 3182. Pages 3392-3393 contain a discussion about the lower standard of proof which applies to civil forfeiture actions as opposed to criminal forfeiture actions. The lower standard of proof was looked upon favorably in the legislative history.

2. The legislative history of Public Law No. 95- 633 is contained in 1978 U.S. Code Cong. and Adm. News, p. 9496. In a Joint Explanatory Statement contained at page 9522, Congress admitted that due to the "penal nature" of civil forfeiture statutes, it intended for forfeiture to apply only where a "substantial connection" could be shown between the property and the criminal activity. Moreover, because tainted money proceeds are often mixed with untainted proceeds, the proceeds should be forfeitable only to the extent traceable.

III. Administrative Rules and Regulations

I scanned through the index of the Code of Federal Regulations and found some interesting and relevant provisions. I found the same provisions by doing a terms and connectors search on Westlaw in the CFR database. Not only were the provisions relevant because they qualify as administrative regulations, but also because they seemed to impose certain requirements for constitutional purposes. For instance, the provision entitled "Seizure, Forfeiture, and Disposition of Property," contained notice requirements. Notice requirements are likely in response to the due process demands of the Fifth Amendment.

A. Seizure, Forfeiture, and Disposition of Property, 21 CFR 1316.71-1316.81. These sections discuss who has the authority to seize property, who holds and appraises the property, what is required as sufficient notice, and the variances between administrative and judicial forfeiture.

B. Expedited Forfeiture Proceedings for Certain Property, 21 CFR 1316.90-1316.99. These sections provide for speedier proceedings (w/in 21 days) where the amount of narcotics involved was small enough to only be used for personal use.

C. FBI Forfeiture Authority for Certain Statutes, 28 CFR 8. This regulation discusses who, under various statutes, has the authority to forfeit property, and where and how the property must be disposed.

D. Seizure and Forfeiture of Vessels, Vehicles and Aircraft Used to Transport Counterfeit Coins, Obligations, Securities and Paraphernalia, 31 CFR 401. This provision gives authority to U.S. Secret Service officers to take custody of and dispose of conveyances.

IV. Case Law

A. Westlaw

When I looked for cases referring to constitutional limitations placed on civil forfeiture laws, the following query worked best in Westlaw's ALLFEDS database: "civil forfeiture" /p constitution! amendment /p "civil forfeiture". Although this search brought up a number of only slightly relevant cases, it also provided the most important cases. At one point I used "civil w/3 forfeiture" and "asset w/3 forfeiture" with references to the constitution and amendments. I thought this would bring in a few more relevant cases, but it turned out these queries retrieved substantially the same cases.

B. Lexis

On Lexis I searched in the GENFED library and the combined US, USAPP, & DIST files. I used queries similar to the ones I used in Westlaw, i.e. "civil forfeiture w/25 amendment or constitution." I came up with substantially the same cases.

I also used Westlaw and Lexis to find cases focusing on administrative rules. My queries were basically the statutory citations of the administrative rules. None of the cases did more than make reference to the rules in passing.

C. Digest Key Numbers

The following West Digest Key Numbers seemed to be the most helpful:

A. Constitutional Law 284(3), 303
B. Drugs and Narcotics 190-198
C. Forfeiture 2, 3

To say that there is an abundance of case law on the constitutionality of civil forfeiture law is an understatement. Much of it, however, merely recites precedent and holds accordingly. The following cases provide a thorough basis for understanding court-imposed limitations on civil forfeiture.

United States Supreme Court Decisions

A. United States v. James Daniel Good Real Property, 114 S.Ct. 492 (1993). Absent exigent circumstances, due process clause of Fifth Amendment requires government to afford notice and meaningful opportunity to be heard before seizing property which is subject to civil forfeiture.

B. Austin v. United States, 113 S.Ct. 2801 (1993). The Eighth Amendment excessive fines clause applies to in rem civil forfeiture proceedings as well as in personam criminal forfeiture actions.

C. United States v. Monsanto, 491 U.S. 600 (1989). Neither the Fifth nor the Sixth Amendment requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay the defendant's legal fees. Moreover, defendant's assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable. See also Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989).

D. Murray v. Carrier, 477 U.S. 478 (1986). Sixth Amendment does not entitle property owners to counsel at public expense whenever the government lays claim to their property.

E. United States v. U.S. Coin & Currency, 401 U.S. 715 (1971). Privilege against self-incrimination applies in only some forfeiture cases.

F. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). Exclusionary rule of the Fourth Amendment applies in forfeiture cases.

G. Untied States v. Zucker, 161 U.S. 475 (1896). Confrontation clause of the Sixth Amendment does not apply in forfeiture proceedings.

H. Boyd v. United States, 116 U.S. 616 (1886). Since forfeiture actions are quasi-criminal all of the Fourth Amendment's protections and the Fifth Amendment's protection against self- incrimination are applicable in forfeiture proceedings.

Federal Circuit Court Cases

I. United States v. Millan, 2 F.3d 17 (2d Cir. 1993). Where constitutional prohibitions are not implicated, the government is allowed to employ every available statutorily authorized penalty.

J. United States v. $874,938.00 U.S. Currency, 999 F.2d 1323 (9th Cir. 1993). Determining whether delay in filing civil forfeiture proceedings violates due process requires consideration of length of delay, reason for delay, claimant's assertion of his rights, and prejudice to claimant by delay.

K. United States v. Certain Real Property 566 Hendrickson Blvd., 986 F.2d 990 (1993). Where related state criminal prosecution and federal forfeiture proceeding were pending, Constitution did not require federal government to offer use immunity for testimony in civil forfeiture proceeding nor did it require stay of forfeiture case.

L. United States v. Lasanta, 978 F.2d 1300 (2d Cir. 1992). Congress cannot conclusively determine reasonableness of warrantless seizures for purposes of civil forfeiture in drug- related cases and thereby eliminate judiciary's role in task of constitutional construction of Fourth Amendment.

M. United States v. One Parcel of Property Located at 508 Depot St., 964 F.2d 814 (8th Cir. 1992). Civil forfeiture actions are in rem rather than in personam, and since the government is proceeding against the "offending" property, the owner's guilt or innocence is constitutionally irrelevant.

N. American Library Ass'n v. Barr, 956 F.2d 1178 (D.C. Cir. 1992). Even though civil forfeiture provision in Child Protection and Obscenity Act apparently allowed government to seize expressive materials without prior judicial determination in adversary proceeding, the Act was not unconstitutional since the government would never use this power.

O. United States v. One 1985 Mercedes, 917 F.2d 415 (9th Cir. 1990). Contrary to constitutional requirements applicable to most civil cases, in civil forfeiture proceeding due process does not demand immediate post-deprivation hearing. Civil due process in forfeiture action requires merely that proceedings be commenced without unreasonable delay.

P. United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532 (5th Cir. 1987). Ex post facto clause of the federal constitution does not apply to remedial civil forfeiture provisions.

Federal District Court Cases

Q. Leyh v. Property Clerk, 774 F.Supp. 742 (E.D.N.Y. 1991). Due process presumption of innocence does not apply to civil forfeiture action.

R. United States v. Certain Real Property Known as 38 Whalers Cove Dr., 747 F.Supp. 173 (E.D.N.Y. 1990). Where innocent owner has done all that can be reasonably expected to prevent proscribed use of his property, civil forfeiture would be arbitrary act serving no legitimate government interest, oppressive and harsh, and would contradict Fifth Amendment.

S. United States v. Premises Known as 2639 Meetinghouse Rd., 633 F.Supp 979 (E.D. Pa. 1986). Provides a constitutional history of civil and criminal forfeiture.

V. American Law Reports

There are several ALR annotations which discuss civil forfeiture. Their are two basic methods for finding relevant annotations. First, the ALR Index is fairly user-friendly. However, as with the U.S.C.A., the ALR index category for this pathfinder is Fines, Penalties, and Forfeitures. This category includes a lot of irrelevant annotations.

A quicker, but more expensive method is to use Lexis. Lexis has an ALR library and file. Using "civil forfeiture" as a query retrieved the best annotations. Each of the following contain helpful information in understanding limitations on civil forfeiture.

A. Forfeiture of personal property used in illegal manufacture, processing, or sale of controlled substances under 511 of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS 881), 59 ALR Fed 765. This annotation discusses ways to establish prima facie civil forfeiture cases for violation of drug laws, as well as how to defend against them.

B. Seizure of forfeiture of real property used in illegal possession, manufacture, processing, purchase, or sale of controlled substances under 511(a)(7) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS 881(a)(7)), 104 ALR Fed. 288. This annotation takes the same approach as the one listed above as "A", but it focuses more on the innocent owner defense to civil forfeiture actions.

C. Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited, 25 ALR4th 395. Although this annotation is based on state cases, it is helpful in understanding limitations on 18 U.S.C.A. 2254, which provides for seizure of child pornography among other things. This annotation focuses on the validity and application of such statutes, focusing on such concerns as prior restraints.

D. Delay between seizure of personal property by Federal Government and institution of proceedings for forfeiture thereof as violative of Fifth Amendment due process requirements, 69 ALR Fed 373. In defining unconstitutional delays under federal forfeiture laws, this annotation points out particular causes of delay as violative of due process.

VI. Legal Encyclopedias

Legal encyclopedias are sometimes a good place to start research on a topic. They provide a good basic knowledge and sometimes cite to a helpful case or two that will get the ball rolling. Both CJS and AmJur are fairly accessible through their indexes. In each set I looked under "Forfeitures," and also "Drugs & Narcotics." When I learned that each set had several pages devoted to each topic (CJS has a volume devoted to Drugs & Narcotics), I turned to the first page of each and reviewed their tables of contents.

A. Corpus Juris Secundum

1. Drugs and Narcotics 139-148 discuss property subject to forfeiture laws, third party rights, federal statutes, defenses and proceedings.

2. Forfeitures 1-10 provide a good background for understanding civil forfeiture. Section 4 in particular discusses the constitutional and statutory provisions for forfeiture.

B. American Jurisprudence 2d

1. Drugs, Narcotics & Poisons 27.25, 27.28 - these annotations are found only in the pocket-part because they were so recently added. Section 27.25 annotates cases which discuss civil drug forfeitures generally. Section 27.28 annotates cases discussing the burdens of proof applicable in civil forfeiture cases.

2. Forfeitures 9, 16, 36. Section 9 discusses forfeiture statutes generally. Section 16 discusses their constitutionality. Section 36 discusses necessary process, notice, and the right to be heard.

VII. Law Reviews & Journal Articles

Law review and journal articles on this topic abound. There are several methodologies for finding them. One way is to look in the U.S.C.A. following civil forfeiture statutes. It lists relevant law review and journal articles following each statute.

A better way is to use the LegalTrac and/or Index to Legal Periodicals CD-Roms. By entering queries the titles of numerous articles can be retrieved. However, after a list of titles is retrieved and reviewed for probable relevance, it is necessary to look in the printed text to determine absolute relevance.

Thus, an even easier, but very expensive method is to use Westlaw and Lexis. On Westlaw I searched in the TP-ALL database, and on Lexis I searched the LAWREV library and the ALLREV file. In each system I looked for articles that referred to "civil forfeiture" within some proximity of "constitutional!" or "amendment*". I retrieved a greater number of articles on Westlaw. Then, rather than look in the text of each and every article on my list, I scrolled through the documents by looking at the TERM pages. This process makes it possible to whittle down a list to a workable number of documents.

The following list is a selection of those articles that appear to be most on point, persuasive, original, and authoritative (not necessarily in that order):

A. William J. Genego, Forfeiture, Legitimation and a Due Process Right to Counsel, 59 Brook. L. Rev. 337 (1993). This article discusses the history of civil forfeiture case law and then focuses on the evolution of the 2d Circuit's approach. The article argues that a sixth amendment right to counsel should exist in civil forfeiture cases.

B. David J. Stone, Note, The Opportunity of Austin v. United States: Toward a Functional Approach to Civil Forfeiture and the Eighth Amendment, 73 B.U. L. Rev. 427 (1993). This note encourages the Supreme Court to limit use of in rem civil forfeiture laws by applying the Excessive Fines and Penalties clause of the Eighth Amendment. (The Supreme Court did).

C. Lea P. Dillard, Comment, Due Process and Civil Forfeiture: How Much Process is Due When the Government Seizes a Home for the Purpose of Civil Forfeiture Under 21 U.S.C.A. 881?, 10 T.M. Cool. L. Rev. 621 (1993). This comment points out the constitutional weaknesses in civil forfeiture laws, especially where people's homes are forfeited. It suggests a need for notice and an adversarial hearing to satisfy due process.

D. Marc B. Stahl, Asset Forfeiture, Burdens of Proof and the War on Drugs, 83 J. Crim. L. & Criminology 274 (1992). This article argues that 21 U.S.C. 881's placing the burden of proof on civil forfeiture defendants violates due process.

E. Ron Champoux, Note, Real Property Forfeiture Under Federal Drug Laws: Does the Punishment Outweigh the Crime?, 20 Hastings Const. L.Q. 247 (1992). This note reviews the history of civil forfeiture and explains the current procedure. It discusses constitutional protections and innocent owner defenses.

F. Lawrence A. Kasten, Note, Extending Constitutional Protection to Civil Forfeitures that Exceed Rough Remedial Compensation, 60 Geo. Wash. L. Rev. 194 (1991). This note argues to apply all of the constitutional protections to civil forfeiture actions which exceed rough remedial compensation. Others in this regard have merely argued application of the Eighth Amendment.

G. Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325 (1991). This article discusses the constitutional issues which are created by the criminal/civil "mix and match." It highlights the lack of constitutional protections in civil forfeiture actions.

H. Edward M. Genson & Marc W. Martin, A Guide to Handling Federal Narcotics Forfeiture Cases, 79 Ill. B.J. 180 (1991). This is a guide to defending forfeiture actions.

I. Tamara R. Piety, Scorched Earth: How the Expansion of Civil Forfeiture Doctrine Has Laid Waste to Due Process, 45 U. Miami L. Rev. 911 (1991). The title here speaks for itself.

J. Steven S. Biss, Note, Substantial Connection and the Illusive Facilitation Element for Civil Forfeiture Narcoband in Drug Felony Cases, 25 U. Rich. L. Rev. 171 (1990). This note argues that their must be a "substantial connection" between alleged "narcoband" and the crime, to satisfy constitutional limitations on civil forfeiture. Note that this was a concern mentioned in the legislative history cited above.

K. Jay A. Rosenberg, Note, Constitutional Rights & Civil Forfeiture Actions, 88 Colum. L. Rev. 390 (1988). This note argues that civil forfeiture defendants should be given use immunity where subsequent criminal proceedings are likely.

VIII. UNIS and Books

As I used UNIS to look for secondary sources, I soon realized that "asset forfeiture" was a better search term than "civil forfeiture" and that "forfeiture" covered them both without picking up too much debris. There does not appear to be a lot of books written on the topic of civil forfeiture. The following two books appear to be helpful:

A. Prosecution and Defense of Forfeiture Cases - this is a leaflet service found in the law library at KF 9747.s64. It looks like the library has discontinued the service but it might provide some good starting points.

B. Understanding Forfeiture and Related Civil Actions in Criminal Law - this is a litigation and administrative practice series found in the law library at KF 9619 .U645 1992. It discusses forfeiture actions and defenses with regard to real property and narcotics among other things.

There are also a lot of United States government documents about forfeiture. The following list is a sample of some that appeared to be more relevant to the focus of this pathfinder:

C. Asset Forfeiture: Guide to Pre-seizure Planning, by the United States, Bureau of Justice Assistance (1993). Call number: J 26.29:15 (law library). Discusses the importance of planning asset forfeitures and considering alternatives.

D. Drug Agents' Guide to Forfeiture of Assets, by the United States, Drug Enforcement Administration (1987 revision with 1990 supplement). Call number: J 24.8: D84/6/990 (law library on microfiche).

E. Use of Forfeiture Sanctions in Drug Cases, by Lindsey D. Stellwagen (1985). Call number: J 28.24: D84/3 (law library). Contains a section on limitations on forfeitures. Reviews crimes and property forfeited. Gives recommendations.

F. Forfeitures, by the United States, Dept. of Justice (1984). Call number: J 1.2: F 76/3 (law library). Discusses forfeiture statutes and specific applications.

IX. Treatises and Hornbooks

Wright & Miller's Federal Practice & Procedure (civil) provides a lot of information about procedural regulations and guidelines in civil forfeiture cases. Simply consulting the index under "civil forfeiture" provides quick and easy reference. Some of the sections that appeared to have helpful information for directing a civil forfeiture action are:

A. 1020 - discussing the civil rules applicable to civil forfeiture actions.

B. 2004 - discussing applicable discovery rules in civil forfeiture proceedings.

C. 3527 - explaining exclusive federal jurisdiction for civil forfeiture cases.

D. 4422 - explaining the specific circumstance of a single claim with different standards of evidence.

X. Form Books

I was almost surprised to find that several of the standard form books contain sample forms applicable in civil forfeiture proceedings. The most pertinent form for this pathfinder's purpose was the form for providing notice. Notice forms and others can be found by referencing the index of the following form books:

A. West's Federal Forms - look under "Fines, penalties and forfeitures" in the index.

B. AmJur Legal Forms - look under "Forfeitures and Penalties" in the index.


The constitutionality of civil forfeiture law is being questioned more and more frequently. Of course we need a potent weapon against drugs and other serious crimes, but the Constitution places limitations on such weapons. Although the practice of civil forfeiture should not be abandoned completely, constitutional rights should not be a casualty of the war on drugs. It will be interesting to watch as the law of civil forfeiture develops and expands.

Civil forfeiture is a boundless area of the law. This pathfinder only scratches the surface, but hopefully provides some methodologies that can be applied to update this research and to research other areas of forfeiture as well.

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