What is Federal Forfeiture?

Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the Federal government's "war on drugs" since the mid-eighties. Forfeiture is a potent deterent, as well as a revenue source on which law enforcement has grown increasingly dependent. However, it brings with it far fewer procedural safeguards than the criminal law.

Most forfeiture activity occurs under Federal law, and most of that is connected to the traffic in illegal drugs. Cities and other municipal governments have cooperated in forfeiture actions under both Federal and state drug laws.

Forfeiture takes two distinct forms -- criminal and civil. Nearly all contemporary forfeiture involves the civil variety. Criminal forfeiture operates as punishment for a crime. It, therefore, requires a conviction, following which the state takes the assets in question from the criminal. Civil forfeiture rests on the idea (a legal fiction) that the property itself, not the owner, has violated the law.  Thus, the proceeding is directed against the res, or the thing involved in some illegal activity specified by statute.  Unlike criminal forfeiture, in rem forfeiture does not require a conviction or even an official criminal charge against the owner. This is the source of its attractiveness to law enforcement, and its threat to those concerned about abuse or circumvention of Constitutional protections.

What are some examples of property subject to forfeiture in a Federal Case?

Property for which ownership by itself constitutes a crime, including smuggled goods, narcotics, and automatic weapons.  The government's mandate in protecting the public forms the justification for seizure in this case.

Property directly resulting from, or that can be traced to, an illegal activity.  Once a crime is identified, the government may seize any property flowing from the activity.  In some cases, the government may seize property in lieu of provable criminal proceeds.  Statutory innocent owner defenses provide a check on the seizure power, although this burden lies with the owner, not the government.

  • Tools or Instrumentalities Used in Commission of a Crime:

Property used in the commission of a crime, including vehicles and real estate.  By being associated with the crime, the property is "guilty" of the offense, and subject to seizure.  In some cases, the innocence of the owner may not be a defense, although Constitution limitations, such as the Eighth Amendment's Excessive Fines Clause, may apply.

What Happens to Property that is Forfeited?

The United States Marshals Service is responsible for managing and disposing Federally seized and forfeited properties. It currently manages around $1 billion worth of property. The goal of the program is to maximize the net return from seized property by selling at auctions and to the private sector and then using the property and proceeds for law enforcement purposes.


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