The chairmen of the Senate and House Judiciary Committees have stated that reforming federal civil asset forfeiture laws is a top priority for them. Why all of this attention? The answer is that, despite its good intentions, civil asset forfeiture has gone awry and is in serious need of reform.
Civil asset forfeiture is based on a fiction, albeit one of ancient lineage, [4] that property can be guilty of a crime and thereby forfeited to the sovereign regardless of whether any individual is ever charged with and much less convicted of a crime related to that property.
Regrettably, the procedures used to effectuate a civil forfeiture are skewed against innocent property owners [6] whose property may have been misused by others to engage in criminal activity. Moreover, in many instances, what began as a means to a laudable end has become an end in itself. Some law enforcement authorities focus more on getting money and property and less on catching criminalsβbehavior that some have referred to as a form of legalized bounty hunting.
This runs counter to the long-established principle of separation of powers. Self-generating revenues by the police through forfeiture potentially threatens the ability of popularly elected officials to constrain police activities. Civil forfeiture grew during Prohibition, when laws were revised to permit the seizure of vehicles used by bootleggers.
But it was not until , with the passage of the Comprehensive Crime Control Act and the war on drugs, that civil forfeiture really began to grow dramatically. Today, there are hundreds of forfeiture laws covering a broad panoply of federal crimes. Civil forfeiture differs from criminal forfeiture in several significant ways. In a criminal forfeiture case, the government sets out the property that is subject to forfeiture as part of the indictment against the individuals who used or derived the property, and the forfeiture proceeding is an ancillary proceeding that follows after the defendants are convicted.
