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Proposing a transactional approach to civil forfeiture reform.

INTRODUCTION
I. THE HISTORY OF CIVIL FORFEITURE
  A. The Ancient Roots of the Practice
  B Uses Throughout American History
  C. The Drug War and the Expansion of Forfeiture
II. FORFEITURE LAW TODAY
  A. The National Landscape
  1. Federal Law
     a. CAFRA
     b. Customs Rules and Other Federal Laws
  2. State Law
     a. North Carolina
     b. Alaska
     c. Florida
  3. The Interrelation: Equitable Sharing
  B. Arguments for Robust Civil Forfeiture Laws
III. REFINING THE ISSUE
 IV. POTENTIAL SOLUTIONS
  A. Inaction
  B. Expanding Constitutional Defenses
  1. Double Jeopardy
  2. The Due Process Clauses of the Fifth and
     Fourteenth Amendments
  3. Excessive Fines Clause of the Eighth Amendment
  C. Removing the Profit Motive from Civil Forfeiture
  D. Abolishing Civil Forfeiture
  V. THE TRANSACTIONAL APPROACH
  A. Some Insights from Economic Theory
  1. Transaction Costs
  2. Externalities
  3. Nudges
  B. Proposed Solutions
  1. Require an Immediate in Personam Hearing to Determine
     Whether the Seizure is Justified
  2. Require Forfeiture Documentation to be Notarized by
     Independent Notaries
  3. Require Extensive Documentation on Any Dogs Used in
     Forfeiture Actions
  4. Disallow the "Alert" of Drugs on Currency to
     Justify Forfeiture
  5. Require One Hundred Percent of Attorneys' Fees to Be
     Returned to Successful Claimants
  6. Require Officers Who Would Engage in Seizure to Obtain
     Certification
  C. Progress?
CONCLUSION


INTRODUCTION

Civil forfeiture is a truly extraordinary legal doctrine--so much so that those who find themselves subject to a forfeiture proceeding frequently express disbelief that such an action could exist in the United States. (1) The Kafkaesque civil forfeiture system is ancient, labyrinthine, and impermeable to the uninitiated. Despite its esoteric nature, federal, state, and local authorities commonly utilize this legal doctrine. While the practice once had reputable roots, it has become a tool with enormous potential for abuse. This Comment explores the doctrine of civil forfeiture at a macro level before suggesting some specific recommendations for reform.

I begin by briefly examining the history of civil forfeiture. Forfeiture has its origins in biblical text and was present in English law as early as the tenth century. Rapidly appearing via statute in the United States, it was used as a tool against smugglers, confederate sympathizers, and liquor runners during Prohibition. The practice grew increasingly common in the 1980s, as legislatures realized forfeiture could prove a potent weapon in the war on drugs. As such, forfeiture use has since expanded dramatically; today, the value of property forfeited annually stands in the billions of dollars. (2)

The historical underpinnings of civil forfeiture continue to be relevant because they help clarify what forfeiture is. Essentially, forfeiture is an action filed directly against property, rather than against an individual. It depends on the central notion that property can be guilty per se. Forfeiture actions, then, proceed against the property itself. The property owner, who is reduced to a third party claimant, lacks many constitutional protections that would otherwise be available in a criminal action. (3)

Nationwide, civil forfeiture laws are a complex, multilayered landscape of federal and state statutes. The federal forfeiture statute--the Civil Asset Forfeiture Reform Act (CAFRA)--stands as the dominant federal paradigm, although it interacts with other federal laws, like customs statutes, that provide for forfeiture. Simultaneously, forty-nine states--all except North Carolina--allow civil forfeiture. Law enforcement officers pursuing a seizure of property have a number of options; for instance, federal "equitable sharing" guidelines allow officers in a state with a more restrictive statute to bypass state guidelines and access more favorable federal forfeiture proceedings.

Critically, many of these statutes--most notably CAFRA--allow law enforcement to keep the proceeds of forfeiture actions. Although the revenue raised by forfeiture has proved vital to reinforcing sagging law enforcement budgets in difficult economic times, such provisions also increase the threat of abuse. The resulting revenue, combined with a lower burden of proof than in criminal prosecutions, incentivizes law enforcement to use civil forfeiture as a tool to seize and dispose off individual property for its own ends.

This Comment addresses the problems associated with civil forfeiture in a very specific context: mid value chattel (MVC) and low value chattel (LVC) forfeiture. This should not suggest that forfeiture against real property (RP) or high value chattel (HVC), defined here as chattel with a value greater than $10,000, is not problematic. Rather, MVC and LVC forfeiture pose several unique problems.

The major issue that MVC and LVC seizure creates is that it is simply not economically rational for most individuals to defend an action against such chattel, given the relatively high cost of doing so. Standard attorneys' retainers in forfeiture actions can be upwards of $10,000--an amount that may be several times greater than the value of the chattel itself. (5) Indeed, data reveal that approximately eighty percent of forfeitures are uncontested. (6) Moreover, it is not readily apparent that the seizure of MVC and LVC--often involving small, personal belongings, such as phones or sneakers--is particularly effective at stopping pernicious drug traffickers. Finally, the Constitution, which provides some due process protections for the deprivation of real property via forfeiture, does not afford analogous protection to MVC and LVC.

Many other proposed solutions to the problems of civil forfeiture fall short of providing a framework to protect MVC and LVC. First, law enforcement officers, prosecutors, and their lobbies oppose any limitation on forfeiture. Second, some legal commentators have argued for extending constitutional protections to forfeiture. MVC and LVC, however, pose unique problems for any ex post constitutional protections. The major problem, of course, is that the majority of such actions are uncontested. As such, courts simply do not consider any constitutional protections because it is not economically rational for individuals to litigate a defense in the first place.

Even if the advanced constitutional protections of the Fifth or Eighth Amendments merited consideration, they would fail to provide much help to MVC and LVC claimants. For example, although the Eighth Amendment's excessive fines clause can overturn certain forfeitures, which in the language of CAFRA are "grossly disproportional," (7) MVC and LVC are frequently of such little value that this provision does not provide sufficient protection.

The most serious suggestion--and one not disparaged here--is the abolition of the profit motive in forfeiture. This Comment, however, cautions against viewing such an approach as a panacea that would cure all the ills of forfeiture. First, there is evidence that forfeiture can be a tool of racial oppression. (8) Merely abolishing monetary profit from forfeiture might not therefore dissuade officers from engaging in forfeiture to harass minorities. (9) Furthermore, abolishing the profit motive might discourage officers from undertaking the forfeitures that "matter"--i.e., pursuing valuable proceeds or instrumentalities of the drug trade, such as the massive property owned by Pablo Escobar, seized in Florida during the 1980s. (10) Forfeitures of such properties are likely to be complicated and dangerous, and police should be rewarded for pursuing them. Finally, totally stripping the profit system from forfeiture might cripple police budgets, which, particularly in our current economic milieu, rely on forfeiture proceeds. (11)

In light of these issues, I propose a new approach to civil forfeiture reform. I argue that forfeiture should be seen as a transaction--one that transfers rights in property from the claimant to the seizing department. As such, different costs can affect the "market" for forfeiture. Within this framework, I suggest increasing the transaction costs of forfeiture and requiring police departments to internalize the externalities they impose on non-consenting parties (i.e., owners) in these actions. The idea, in essence, is to change the ex ante incentive structure to protect MVC and LVC from entering a system where defense is simply not economically rational. Increasing transaction costs--by requiring heightened procedural formality or by forcing immediate probable cause hearings for plaintiffs--would make police discount the value of any seized property against the costs of its seizure, with the hope that MVC and LVC will simply no longer be worth the effort.

This Comment proceeds in five parts. In part I, I examine the history of forfeiture, beginning in Exodus and continuing through medieval England. I track the development of forfeiture law in the United States, before examining its initial deployment in the war against drugs in the early 1980s. I then discuss the vociferous criticism of forfeiture in the 1990s, which eventually led to the passage of CAFRA, the federal forfeiture act in place today.

In Part II, I turn to the statutory framework, examining CAFRA, followed by the particular forfeiture statutes of three states: North Carolina, Alaska, and Florida. Last, I look briefly at the intersection of federal and state law in the context of the doctrine of federal equitable sharing.

After this general discussion of forfeiture, in Part III I narrow my focus to the aforementioned problem of MVC and LVC. I examine in detail the issues facing MVC and LVC, and explain why these two categories of chattel pose unique difficulties for any sort of protective framework. I also detail specific instances of abuse of MVC and LVC forfeiture.

In Part IV, I turn to four proposed solutions for resolving forfeiture abuses (1) retaining the forfeiture status quo without reform, (2) expanding constitutional defenses, (3) stripping the profit motive from forfeiture, and (4) abolishing forfeiture entirely. I detail the advantages and disadvantages of these provisions, both generally and in the specific context of MVC and LVC.

Finally, in Part V, I turn to my proposal: the transactional approach. First, I advance the idea of forfeiture as a transaction, specifically within the Calabresi-Melamed framework of rights transfer. Establishing forfeiture as transactional in nature, I then discuss three economic concepts that should inform forfeiture reform ideas: transaction costs, externalities, and "nudges." I conclude by applying these concepts in the form of six proposed solutions.

I. THE HISTORY OF CIVIL FORFEITURE

Although this Comment largely focuses on the use and abuse of civil forfeiture in the twenty-first century, it is still worthwhile to turn to the ancient--indeed, biblical--roots of the practice. This historical detour proves germane to the discussion, as the unique development of civil forfeiture as legal fiction continues to resonate in modern Supreme Court opinions on the subject. (12)

A. The Ancient Roots of the Practice

The core conceit of civil forfeiture, that objects can be "guilty," stems from Exodus: "When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall not be liable." (13)

The concept acquired additional substance in Medieval England, where it evolved into an action called deodand. Deodand--a transformation of an earlier action called noxal surrender, which involved surrendering property to the wronged party, rather than to the state--developed in the tenth century laws of Alfred the Great, and reflected a mixture of biblical ideas and Anglo-Saxon wergild traditions. (14) Deodand required the surrender, directly to the Crown, of an object that had caused the death of a king's subject. (15)

Deodand became a source of revenue for the Crown before its eventual excision from the English common law in the early nineteenth century. (16) This form of forfeiture did not make its way into early U.S. common law. In fact, forfeiture laws, like the infamous "writs of assistance" that British customs agents enforced, were a major grievance of the Colonies and contributed to sparking the American Revolution. (17) Consequently, the Constitution explicitly bans forfeiture of estate. (18)

B. Uses Throughout American History

Although common law forfeiture was not part of the U.S. tradition, statutory forfeiture achieved recognition as legitimate and played a role through the first two centuries of the republic.

Early uses of civil forfeiture in the United States reflected the balance between controversies raised by estate forfeiture and the necessary revenue and enforcement goals of forfeiture actions. Many early forfeiture statutes, derived from the British Navigation Acts passed in the seventeenth century, targeted smugglers. (19) A series of early Supreme Court cases upheld Congress's authority to pass such statutes, distinguishing common law forfeiture from statutory forfeiture. (20) These forfeiture acts were justified as necessary, as it was often easier for customs officials to seize smuggled property than to apprehend the smugglers themselves. (21) However, these early uses of forfeiture were limited to enforcing admiralty jurisdiction. (22)

These cases laid the legal foundation of forfeiture. However, the doctrine long remained dormant in the American legal landscape, emerging only briefly during the Civil War as the Confiscation Acts, which allowed for the seizure of property belonging to those who aided the rebellion. (23) Similarly, government agents employed forfeiture to seize the profits and possessions of liquor smugglers during Prohibition. (24) Under the National Prohibition Act, (25) conveyances of intoxicating liquors were subject to forfeiture. (26) The Act facilitated the seizure of automobiles belonging to liquor smugglers, as in United States v. One Ford Coupe Automobile. (27)

C. The Drug War and the Expansion of Forfeiture

The use of forfeiture exploded with the onset of the drug war. The passage of the Comprehensive Drug Control Act (CDCA) (28) in the early 1970s marked the first instance in which the government used civil forfeiture as a tool to combat drug trafficking. Calero-Toledo, a seminal forfeiture case from this period, still provides much of the backbone supporting the modern understanding of and justification for the doctrine. (29)

Forfeiture truly came to the fore with the passage of the 1984 Comprehensive Crime Control Act, (30) which permitted law enforcement to use forfeited funds. (31) The resulting revenue gains have been staggering: in 2012 the government seized $4.2 billion in property and has enjoyed other notable achievements, such as the seizure of real estate properties from Latin American drug kingpins. (32)

In spite of the trumpeted successes of civil forfeiture, stories of abuse began to trickle into the national media. Federal officials killed reclusive millionaire Donald Scott when he resisted arrest during a raid on his ranch in search of marijuana plants, which, if found, would have allowed for the seizure of his property. (33) Willie Jones, a Tennessee man, had $9600 in cash--which he had accumulated to purchase shrubbery for his business-- confiscated for no reason other than that drug dogs alerted authorities to the presence of trace drug residue on his cash. (34) Mr. Jones's case so alarmed Representative Henry Hyde that he brought Jones to testify before Congress during the passage of CAFRA. (35)

Moreover, three seminal Supreme Court cases from the 1990s showed the limitations of constitutional protections against abuses of civil forfeiture, sparking cries for reform. The first, Bennis v. Michigan, turned on the forfeiture of a car in a prostitution sting. (36) Mrs. Bennis claimed that although her husband had been using the car to solicit prostitutes, she--as an innocent owner--should not have to forfeit her interest in the car. (37) Unfortunately, the Court ruled against Mrs. Bennis, holding that there was no innocent owner defense absent statutory intervention. (38)

In United States v. Ursery, a man growing marijuana on his property contended that its seizure, conducted after a prosecution against him, violated the Double Jeopardy Clause. (39) The Court disagreed, ruling that a civil in rem forfeiture action is not punitive, and therefore not violative of the Double Jeopardy clause of the Fifth Amendment. (40)

Finally, in United States v. Bajakajian, the Court addressed the "excessive fines" issue. (41) Bajakajian secretly attempted to take $357,144 out of the United States in violation of customs reporting requirements. (42) Although the government sought forfeiture of the entire sum, the Court did not permit it, finding the seizure of the entire amount disproportionate to the conduct authorizing its forfeiture. (43)

These cases, particularly Bennis, and the widely reported abuses of civil forfeiture eventually ratcheted up pressure on Congress to enact major reform. This reform materialized as CAFRA, the dominant paradigm of civil forfeiture today. (44)

II. FORFEITURE LAW TODAY

A. The National Landscape

Nowadays, forfeiture remains an intricate system, not merely due to the complexity of CAFRA, but also because of the interlocking nexuses between state and multiple aspects of federal law. Thus, we must briefly explore how federal forfeiture works, how state forfeiture works, and, finally, the intersection between these two sets of laws.

1. Federal Law

Federal forfeiture laws are extremely complicated. As one scholar has suggested, "CAFRA does not replace, but is superimposed upon, the existing procedures in the customs laws, the Supplemental Rules, and the forfeiture statutes themselves." (45)

a. CAFRA

CAFRA is the natural starting point for discussing the national forfeiture landscape. CAFRA reformed several of the most troubling aspects of forfeiture, as fleshed out in courts during the 1990s. For instance, CAFRA explicitly provides for an innocent owner defense, responding to concerns Bennis invoked. (46) Similarly, [section] 983(g) implements the ruling in Bajakajian and requires proportionality in forfeiture. (47)

Other critical changes relate to the burden of proof. CAFRA increased the level of proof necessary for forfeiture, requiring the government to prove by a preponderance of the evidence that the property is subject to forfeiture. (48)

Finally, some of the provisions are aimed at reducing litigation hardships to claimants. Section 983(b)(1)(A) allows for indigent claimants--in narrow circumstances--to receive court-appointed counsel. (49) Similarly, [section] 983(f)(1)(C) provides for the release of property during proceedings to a claimant who can show that government retention of the property will cause "undue hardship" to the claimant. (50)

b. Customs Rules and Other Federal Laws

While CAFRA provides the dominant framework for federal forfeiture, it does not stand alone. Rather, it interacts with a complex set of other provisions and statutes that provide for specific forfeiture for various federal offenses. This can prove extremely complicated:
   For example, 19 U.S.C. [section] 1615 says the burden of proof is
   on the property owner in any civil forfeiture case brought under a
   statute incorporating the customs laws. Section 981(d) still
   incorporates the customs laws and [section] 1615 has not been
   amended; but [section] 983(c) says the burden of proof is on the
   government in any case brought under any "civil forfeiture
   statute," as that term is defined in [section] 983(i). Which
   statute applies when a civil forfeiture action is filed under
   [section] 981? Because [section] 983(c) is inconsistent with the
   customs provision on this issue, it overrides [section] 1615 and
   the burden of proof is on the government. (51)


Outside of the customs context, CAFRA interacts with a host of other obscure federal forfeiture provisions. For instance, CAFRA applies to forfeiture carried out by the Fish and Wildlife Service and the National Oceanographic and Atmospheric Administration. (52) However, [section] 983(1) carves out specific forfeiture proceedings to which CAFRA does not apply including, for example, customs forfeiture generally. (53) Straightforward application of CAFRA is confused here because, despite the general exclusion of customs rules from CAFRA, some statutes enforced by U.S. Customs and Border Protection--for example, currency reporting statutes--are nevertheless subject to its dictates. (54)

2. State Law

In addition to federal law, different states' laws also include unique forfeiture provisions. Some relevant axes of comparison include the standard of proof for seizure, which party bears the burden in the innocent owner defense, the amount of time prosecutors have to file forfeiture actions after seizures, and the amount of value that may be retained by the seizing department. Below, I examine the representative cases of North Carolina, Alaska, and Florida.

a. North Carolina

North Carolina has no state civil forfeiture in rem action. (55) Property owners must be convicted of a crime before being forced to forfeit property. (56) North Carolina's lack of a civil forfeiture statute earned it an "A" from the Institute for Justice (IJ) in its state rankings. (57) However, despite the lack of state forfeiture proceedings, North Carolina police still make use of federal equitable sharing. (58)

b. Alaska

Alaska, by contrast, earned one of the IJ's lowest grades, an "F," for its state civil forfeiture statute. (59) Alaska's statute causes several major problems for property owners. First, property can be forfeited for probable cause. (60) Second, the innocent owner bears the burden of proof in that defense. (61) Finally, property owners must move quickly, as the statute affords only thirty days to contest the seizure. (62)

The Alaska statute also creates problematic incentives for law enforcement. First, the statute allows law enforcement to keep a high percentage of profits that result from forfeiture. (63) Moreover, there is no legal requirement to track forfeiture data in the state, meaning that it is almost impossible to collect systematic data on the level of forfeiture occurring in Alaska. (64) As such, knowing that there is no system of public accountability or oversight, police have every incentive to seize as much property as possible.

c. Florida

Finally, Florida, which earned a "D+" in the IJ rankings, is an interesting middle ground between the two extremes of North Carolina and Alaska. (65) Florida law increases protections for property owners in some instances, while simultaneously undercutting rights in others.

Florida raises the burden of proof for the government, allowing forfeiture only upon a showing of "clear and convincing evidence." (66) Moreover, the government bears the burden of proof in an innocent owner defense. (67) Finally, the Florida statute has an explicit policy objective of vindicating property rights. (68)

However, Florida allows only twenty days for the property owner to contest the forfeiture action--fewer than even Alaska. (69) More troubling is the fact that Florida law enforcement retains eighty percent or higher of forfeiture proceeds, creating problematic incentives. (70) The short window for contesting seizure, combined with high profit retention, incentivizes police to seize as much property as possible, knowing that most of the value will revert to their departments. (71)

3. The Interrelation: Equitable Sharing

Equitable sharing is the final element of the national forfeiture landscape. Equitable sharing gives state officers the ability to access favorable federal forfeiture statutes, thereby bypassing restrictive state statutes. (72)

Under the doctrine of equitable sharing, any state or local law enforcement agency that directly participates in an investigation or prosecution resulting in a federal forfeiture may request an equitable share of the net proceeds of the forfeiture. (73) Two paths lie open to agencies seeking to participate in equitable sharing: joint investigation or adoption. (74)

The joint investigation path is far less controversial. In a joint investigation, local or state (or even foreign) agencies cooperating with or working alongside federal officials can share in a split of the proceeds. (75)

Adoption is much more controversial. Adoption allows a local law enforcement agency that has seized property to turn the property over to federal officials. (76) When the seized property passes the necessary monetary thresholds and also violates federal law--as is often the case with drug laws--federal officials will step in and proceed with the forfeiture under federal law. (77)

Adoption is a much more dubious policy than joint investigation because it allows state and local officials to circumvent stricter state requirements regarding forfeiture by substituting more relaxed federal standards. (78) For instance, states with stringent homestead exemptions may find that equitable sharing evades these protections, as a state homestead exemption is not a defense under federal law. (79)

Moreover, adoption requires that the recipient agency "benefit directly from the sharing." (80) Thus, agencies thwart state laws prohibiting police from retaining a share of the proceeds from civil forfeiture, as officers may receive funds from federal coffers. Indeed, empirical studies have backed up anecdotal evidence that state officers are likely to resort to equitable sharing to evade stricter state rules, particularly with regard to distribution of profits. (81)

Immediately before this article's publication, outgoing Attorney General Eric Holder took steps to constrain the Equitable Sharing Program. (82)

Specifically, Holder dramatically pared back the adoption process discussed above, limiting adoption to "property that directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography." (83) While Holder's action is a step in the right direction, critics rightly point out that potential for abuse still exists. (84) For instance, police departments can still form joint task forces with federal officials to seize assets. (85) Hundreds of such task forces already exist around the country. (86) It is also unclear how long-lasting Holder's unilateral action on the process will be. Nevertheless, it is still a step in the right direction towards reforming civil forfeiture.

B. Arguments for Robust Civil Forfeiture Laws

This convoluted system of laws has led to dramatic results in practice. Many proponents of civil forfeiture are quick to point out its benefits: crime control, increased drug arrests, and a steady stream of money for otherwise cash-strapped police departments. (87)

A Justice Department memorandum cites several of the concrete benefits of forfeiture. For instance, the practice can be employed to seize electronics used to distribute child pornography or to shut down large marijuana farms. (88) Police can also repurpose the instrumentalities of crime. Dramatically, in Tulsa, Oklahoma, "cops drive a Cadillac Escalade stenciled with the words 'THIS USED TO BE A DRUG DEALER'S CAR, NOW IT'S OURS!'" (89)

Outside of seizing the direct instrumentalities of crime, civil forfeiture provides other related benefits. For instance, forfeiture strips criminals of their lavish lifestyles, sending the message that "crime doesn't pay." (90) This separates the profit motive from crime. Moreover, forfeiture allows for the seizure of assets that can be used to establish a recovery fund for victims, (91) as demonstrated recently in the aftermath of the Madoff scam. (92)

From a macro perspective, civil forfeiture has resulted in a massive level of asset seizures: the overall federal fund currently stands at $4.2 billion. (93) Other stories of success abound. For example, Deutsche Bank forfeited $403.8 million in late September 2011 as part of a settlement for allowing fraudulent tax shelters. (94) The U.S. Marshal's website provides a listing of all properties currently for sale, including the house once used by the infamous Russian spies captured in 2010. (95)

III. REFINING THE ISSUE

As stated in the thesis, the challenge of civil forfeiture is determining how to finely tune the incentives underlying the program. Police should be encouraged to go after big-ticket items while maintaining the personal property of innocent individuals safe from government seizure.

After the more general discussion above, I refine the focus here. Since forfeiture allows for seizure of both real property and chattel, the distinction between the two is a natural and important one to make. (96) In addition to separating chattel from real property, chattel itself ought to be divided into three categories: high-value chattel (HVC) (value higher than $10,000), mid-value chattel (MVC) (value between $2000 and $10,000); and low-value chattel (LVC) (value less than $2000).

Of these, I will focus on MVC and LVC for several reasons. First, CAFRA imposes additional protections for real property. For instance, real property can never be the subject of administrative forfeiture; notice is required. (97) Second, there is also a more resilient innocent owner defense for real property. (98) Finally, there is an additional statute linked to CAFRA, section 985, which provides further safeguards for real property. (99)

I also exclude HVC for two reasons. First, police should be encouraged to pursue HVC, as it most strongly meets the justifications for civil forfeiture: stripping away the instrumentalities of crime or removing the fruits of criminal success. (100) More importantly, the intrinsic value of HVC forfeiture means that a legal defense is economically rational.

The economic rationality of defense is central to this Comment. Defense in forfeiture actions is expensive, and counsel is often not provided for indigent defendants. (101) Lawyers' fees only add to this cost, meaning that HVC is oftentimes the only chattel worth defending; for instance, the American Civil Liberties Union (ACLU) estimates that the average cost of forfeiture defense in Georgia exceeds $5000. (102)

Circumstantial evidence indicates that it is often only real property or HVC that merits a defense. Indeed, all of the seminal forfeiture cases involve the defense of real property or HVC. In Calero-Toledo, for instance, the property at issue was a yacht; (103) in Bajakajian the government sought the forfeiture of over $300,000; (104) and in United States v. James Daniel Good Real Property, the property at issue was Mr. Good's home. (105) Since MVC and LVC often do not economically merit a defense, very few forfeiture cases are contested at all; the rate of contested cases pre- and post-CAFRA has only been about twenty percent. (106)

Thus, I seek to construct a system that allows for the maximum protection for mid- and low-value chattel. The focus on MVC and LVC is important, as these items represent the lion's share of forfeitures. For instance, in Georgia, the police seized $2.76 million in forfeitures in 2011; items worth $650 or less comprised more than half of this amount. (107)

The dispersion of the practice is hard to estimate, as many states simply do not report forfeiture data. (108) However, a survey on Westlaw is revealing. Perusing the first fifty results for a search for "Civil Forfeiture" within a three-month time frame returned forty-eight results that constitute HVC. (109) Representative cases like United States v. 2,000,000 in U.S. Currency (110) or United States v. 2005 Porsche Cayenne (111) dominate the landscape. Only two results were even in the realm of MVC: United States v. Approximately $3,199 in U.S. Currency (112) and United States v. One 2003 Jeep Cherokee Ltd. (113)

LVC is not represented at all in this search. We can thus infer that it is simply not worth the time or energy to contest the seizure of LVC. Police, then, can essentially seize LVC without check. Protecting this type of chattel is rendered even more important because police are often incentivized to pursue MVC and LVC forfeiture: "When there's less than $2,000 at stake, law enforcement agencies in the state get to keep 70 percent of what they take. If more than $2,000 is taken, departments can keep half." (114)

The challenge, then, is to design a system that can adequately protect against the abuse of forfeiture as directed against MVC and LVC, while encouraging the lawful pursuit of forfeiture against real property and HVC.

IV. Potential Solutions

Forfeiture--hotly debated in the 1990s--is again assuming a place among the pressing legal issues of the day. As such, multiple groups have proposed different solutions for addressing the current national forfeiture landscape. Unfortunately, none of these solutions adequately addresses the general problems of civil forfeiture or the more specific problem of MVC and LVC forfeiture.

A. Inaction

Much of the current law enforcement establishment argues vociferously against any changes to civil forfeiture, through both public and political advocacy. (115) The arguments in favor of maintaining the existing forfeiture system can be reduced to two components (1) that forfeiture is an effective mode of crime control and (2) that forfeiture provides benefits to law enforcement that makes them more effectively able to police drug crime.

On the first point, law enforcement and prosecutors argue that civil forfeiture is an essential tool in their arsenal and ought not to be tampered with. Indeed, during the CAFRA hearings, the Director of the Department of Justice's forfeiture program testified that "[a]sset forfeiture can be to modern law enforcement what air power is to modern warfare." (116)

Others have echoed this refrain. The Fourth Circuit, in United States v. Two Tracts of Real Property with Buildings, called forfeiture "[o]ne of the most potent weapons in the government's war on drugs." (117) This is the case because, although low-level drug dealers are essentially fungible, the property used to make or distribute drugs is often expensive or difficult to attain; thus, seizing this property can be more effective in stopping drug distribution than seizing any individual dealer. (118) Moreover, forfeiture sends an important message to criminals that "crime doesn't pay," and thus has the potential to act as a deterrent to individuals contemplating criminal activity. (119)

Law enforcement advocates also argue that as forfeiture allows for more effective enforcement against drug criminals, it produces fringe benefits that further control crime. Scholars note that "[p]olice and prosecutors argue that 21 U.S.C. [section] 881 enables them to carry out ordinary law enforcement business and raise money at the same time--to do well by doing good." (120)

Relatedly, law enforcement groups maintain that forfeiture is critical to maintaining their bottom lines. (121) Without such funds, law enforcement would be bereft of critical equipment and other materials needed to combat illegal drug distribution effectively. (122) Numerous commentators note the reliance of law enforcement on forfeiture to provide their offices with equipment. For instance, FBI Special Agent Victor E. Hartman, in a 2001 bulletin, remarked that "[a]sset forfeiture laws ... allow law enforcement to use proceeds of certain seizures for equipment and other needs." (123) As Stillman recounts, not only is the cash from sold property leveraged to benefit the department, but police often directly repurpose the vehicles of drug dealers. (124)

The arguments are crafted pragmatically. In a U.S. Attorneys' Bulletin, Craig Gaumer explained: "Federal civil forfeiture law is a prosecutor's secret weapon, a valuable tool used to guarantee that wrongdoers do not reap the financial benefits of criminal activity or continue to use the tools of their illegal trade." (125) By contrast, many local officials are even blunter, acknowledging that forfeiture is simply essential to maintaining their operating budgets. (126)

Law enforcement is thus intensely critical of restricting forfeiture, which it sees as both directly and indirectly aiding their ability to combat illegal drug distribution. Law enforcement agencies would be loath to see their "most favored weapon" neutered. (127) Accordingly, law enforcement groups such as Community Oriented Policing Services (COPS) point out that the benefits of forfeiture outweigh the negatives and conclude that "it is difficult to fault financially strapped law enforcement agencies for seeking resources to continue their crime-fighting efforts." (128)

Many of these agencies claim that outrage over forfeiture abuse misunderstands the practice. (129) Therefore, many organizations attempt to communicate the benefits of civil forfeiture to their communities through education and outreach programs. (130)

Despite the vehement opposition of law enforcement agencies and some federal officials, the current pernicious use of forfeiture is out of control. (131) As such, simply maintaining the status quo or promoting public education of the benefits of forfeiture programs is insufficient to solve any of the problems associated with forfeiture.

B. Expanding Constitutional Defenses

Expanding constitutional defenses is a problematic proposition, as the property is the defendant in forfeiture actions, with the owner standing as a third party claimant. (132) Hence, the property is relatively unprotected by the Constitution, as "few of the constitutional safeguards imposed on criminal prosecutions apply [in civil actions against property]." (133) In forfeiture proceedings, there is no presumption of innocence, (134) no right to attorney representation, (135) and no hearsay objection. (136)

However, the major difficulty with expanding constitutional defenses is--as noted previously--that most MVC and LVC simply are not economically valuable enough to merit a defense, absent a blanket right to counsel. (137) Although constitutional doctrines may apply, any application will in effect never be tested because these cases are simply not litigated.

1. Double Jeopardy

Under the traditional view, espoused in Ursery v. United States, double jeopardy does not apply to civil forfeiture because it is not punishment in the traditional sense. (138)

The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." (139) The clause prohibits subjecting a defendant to successive trials and successive punishments for the same offense. (140) In Ursery, however, the Court overruled both the Sixth and Ninth Circuits, which had held that civil forfeiture constituted punishment in the context of double jeopardy. (141)

The distinction between civil and criminal proceedings was central to the Court's analysis in Ursery. By holding that forfeiture was not punishment, the Court signaled that forfeiture lay beyond the purview of the Fifth Amendment.

This distinction between civil forfeiture and criminal punishment reaches its ne plus ultra in cases like United States v. One Assortment of 89 Firearms, which hold that even acquittal in an underlying criminal case does not preclude an in rem forfeiture action against associated property. (142) The Court will apply the Double Jeopardy Clause only when the statutory provision turns the "civil trial into a criminal one." (143)

The Court's analysis is problematic on several levels. As many point out, this standard will effectively never provide double jeopardy protection in civil forfeiture. (144) Troublingly, the Court's rationale explicitly depends on the historical justification for forfeiture, which is no longer applicable. (145) The Court has also set up different standards of "punishment" in its forfeiture cases for purposes of comparing Fifth Amendment analysis with Eighth Amendment analysis. (146)

The central problem is the Court's normative focus on the successive punishment, rather than successive prosecution, rationale for double jeopardy. (147) In practice, prosecutors who fail in criminal trials will often bring forfeiture proceedings to get a "second bite at the apple" with a lower standard of proof. (148) These actions are just like sequential criminal proceedings, and commentators urge that they be treated accordingly by extending double jeopardy protection to forfeiture actions. (149)

Although double jeopardy analysis could conceivably provide a framework to protect forfeiture claimants, such a result is unlikely for two reasons. First, the application of double jeopardy to forfeiture proceedings could undermine the "legal fiction" of forfeiture, which the Court has thus far been loath to abandon. Second, many civil forfeiture actions are brought without a parallel criminal action, thus evading any sort of double jeopardy protection altogether.

On the first ground, it is unlikely that the Court would extend double jeopardy protection to forfeiture actions because an admission of the applicability of double jeopardy would directly contravene the central conceit of forfeiture, namely that forfeiture is an action against the res, rather than against the offender. (150) Throughout the twentieth and into the twenty-first century, the Court has continually clung to this historic rationale for forfeiture. (151) Because the Court has maintained this artificial distinction as necessary to preserve the edifice of forfeiture in spite of significant pressure for reform, (152) double jeopardy protection is unlikely.

The second ground is more troubling because, in many forfeiture cases, double jeopardy will simply not apply. Consider two alternative scenarios: the case of the Adams family (153) and the case of the Caswell family. (154) The owners of the property had not been charged with any wrongdoing in either situation, but authorities seized each family's belongings simply because it was connected to illegal behavior on the premises. (155) Double jeopardy is completely inapplicable in both instances because no action against the property or owners was possible except for the forfeiture action. (156) Similarly, in the case of Willie Jones, double jeopardy would not protect Mr. Jones, who was not accused of any criminal wrongdoing, but was nonetheless forced to forfeit his cash. (157)

Thus, even in the unlikely event that double jeopardy were extended to the civil forfeiture context, the doctrine would act perversely to protect those who had been convicted of criminal offenses, rather than innocent owners who had their property seized because of its probable connection to illegal activity.
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Title Annotation:Introduction through IV. Potential Solutions B. Expanding Constitutional Defenses 1. Double Jeopardy, p. 867-897
Author:van den Berg, Michael
Publication:University of Pennsylvania Law Review
Date:Feb 1, 2015
Words:6564
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