NCJ Number
137159
Journal
Notre Dame Journal of Law, Ethics and Public Policy Volume: 5 Issue: 3 Dated: special issue (1991) Pages: 853-887
Date Published
1991
Length
35 pages
Annotation
This essay addresses the fundamental problem with current civil forfeiture laws which are applied most often in drug-related charges, that is, many forfeitures result in a loss of property that is disproportionate to the offense.
Abstract
Although criminal forfeiture is increasingly being subjected to eighth amendment (prohibition against cruel and unusual punishment) scrutiny, civil forfeiture has survived eighth amendment challenge. This essay argues that the basis for making civil forfeiture immune from eighth amendment challenge, the guilty property fiction, is a relic of a bygone era. It is a mechanism now used solely to achieve in a civil proceeding, what may not be accomplished in a criminal proceeding due to a stricter burden-of-proof requirement and the application of constitutional rights for criminal defendants. Forfeiture is appropriately used to deprive drug traffickers of any property they have obtained through drug-trafficking proceeds. Forfeiture is inappropriate, however, when it involves the seizure of the property of drug users that has not been obtained through drug profits and that exceeds the maximum fine that would be paid for the charged offense under criminal law. After a discussion of the history and problems associated with civil forfeiture, this essay concludes that the current Federal civil forfeiture statute (21 U.S.C., Section 881) should be amended. Suggested amendments are offered. 180 footnotes