The Constitutionality of Civil Forfeiture

52 Pages Posted: 11 Dec 2015 Last revised: 17 Mar 2016

See all articles by Caleb Nelson

Caleb Nelson

University of Virginia School of Law

Date Written: March 12, 2016

Abstract

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government’s assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this paper cautions originalists not to assume that they are unconstitutional. The paper concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here — the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

Keywords: civil forfeiture, administrative forfeiture, in rem, due process, originalism, liquidation, legal history, information in rem, information of debt, CAFRA, forfeiture of proceeds, civil penalties, civil punishment, penal versus criminal, United States v. Zucker, Boyd v. United States

Suggested Citation

Nelson, Caleb, The Constitutionality of Civil Forfeiture (March 12, 2016). Yale Law Journal, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2. Available at SSRN: https://ssrn.com/abstract=2701442

Caleb Nelson (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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