Origins and Varieties of Forfeiture

Traditionally, forfeiture actions have proceeded upon the fiction that the inanimate objects can be guilty of wrongdoing. Simply put, the theory has been that if the object is "guilty," it should be held forfeit.6 This can shift the attention from the people responsible for the crime (as with a criminal prosecution) to the property that was derived from or used to facilitate the crime.

Criminal Forfeiture

When criminal forfeiture is used, it accompanies a criminal conviction. For example, if a high-profile drug trafficker is convicted of controlled substance law violations, the convicted's property that was connected with such activity may be forfeited. Criminal forfeiture is, by some accounts7, less common than civil forfeiture, mainly because of the burden of proof in criminal cases, namely proof beyond a reasonable doubt.8 Criminal forfeiture is a sentencing option only if the statute used to convict the offender also provides for forfeiture. Also, when a third party has an interest in the property subject to forfeiture, ancillary hearings are often held to ascertain the nature of that interest and make adjustments as deemed necessary.

Civil Forfeiture

Civil forfeiture has seen its share of controversy not just because the property rather than its owner is targeted (illustrative cases include United States v. One Mercedes 560 SEL and United States v. One Parcel of Land at 508 Depot Street9) but because the standard of proof is considerably lower. In a civil forfeiture action, the government need prove only by a preponderance of the evidence that the property in question was used or obtained illegally, thus making it subject to forfeiture. Civil forfeiture proceedings are independent of criminal proceedings, and it has been estimated that as many as 90 percent of civil forfeitures are not accompanied by criminal charges10, either intentionally or due to insufficient evidence to support a criminal prosecution.

Civil forfeiture can occur via three mechanisms:

1. Summary forfeiture occurs when property is summarily seized. Property subject to summary forfeiture is typically contraband, such as illegal narcotics and drug paraphernalia.
2. Administrative forfeiture is usually commenced against property valued at less than $500,000, or against cash of any value. Administrative proceedings are conducted by the seizing agency; the government initiates a forfeiture action and will take ownership of the property if no one steps forward to contest the forfeiture.§ Real property is not subject to administrative forfeiture, even if it is valued at less than $500,000. Probable cause is the requisite standard in administrative forfeiture (as it is roughly analogous to preponderance of evidence).
3. Civil judicial forfeiture proceedings occur before a judge. It is akin to a trial. If the value of the property in question exceeds $500,000 (or a claim of ownership is filed or real property is involved), this is the mechanism of choice.

§ There are four steps to an administrative forfeiture: (1) Notice of the forfeiture action must be served on all potentially interested parties; (2) Notice of the forfeiture proceeding must be published in a newspaper of general circulation; (3) If no claim opposing the forfeiture is filed during the statutorily required period of actual or published notice, the item is declared forfeit by the administrative agency; and (4) If a claim opposing forfeiture is filed, then the administrative forfeiture proceeding halts and the matter is converted into a judicial forfeiture action (Edgeworth, 2004).

The authors of one study11 found that the assets sought in civil-judicial proceedings were most commonly (48.6 percent) real property. More specifically, of the cases where investigations were proactive (e.g., a drug bust was planned in advance), the assets were primarily real property. Of the cases where investigations were reactive (such as when a traffic stop gave rise to forfeiture), most assets were monetary instruments. The researchers also studied the values, both real and estimated, of the assets in civil-judicial forfeiture cases. They found that the real property was the most valuable, followed by currency, conveyances, and other property, respectively.