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Civil Forfeiture: One Of Government's Stiffest Penalties
Despite Constitutional And Regulatory Limitations
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).
PURPOSE & SCOPE
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
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
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
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
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
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
IV. Case Law
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.
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
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 due process -->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
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
F. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).
Exclusionary rule of the Fourth Amendment applies in forfeiture
G. Untied States v. Zucker, 161 U.S. 475 (1896). Confrontation
clause of the Sixth Amendment does not apply in forfeiture
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
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
demadue processe 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
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
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
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 odue processar 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
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
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
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
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
B. 2004 - discussing applicable discovery rules in civil
C. 3527 - explaining exclusive federal jurisdiction for civil
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
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 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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