Clearing the smoke from the battlefield: understanding congressional intent regarding the innocent owner provision of 21 U.S.C. 881(a) (7).

• Author: Blacher, Robert E.
• Position: Civil forfeiture

1. INTRODUCTION

   "The devil died in December,"(1) and thousands cheered. "A shower of gunfire, and there was Pablo Escobar, a punctured corpse on a rooftop in Medellin, leaking life just like every judge and cop and political candidate he disposed of without a blink."(2) On Wednesday, 1 December 1993, Pablo Escobar celebrated his forty-fourth birthday.(3) On 2 December 1993, police and soldiers raided his hideout and gunned him down as he tried to escape over the rooftops.(4) After a lifetime of crime and twenty minutes of gunfire, the king of cocaine was dead.

   The Colombian soldiers celebrated, cheering "we won."(5) President Clinton sent President Trugillo of Colombia a telegram congratulating him on the raid.(6) On that day, the world rejoiced and enjoyed a slight victory in the war on drugs.

   Ultimately, however, United States officials recognized that Escobar's death was merely a symbolic victory, and would not reduce the flow of cocaine into the United States.(7) Drug trafficking is a billion dollar industry.(8) The tremendous potential for profit creates a large incentive to participate in the drug trade.(9) And while draconian measures, such as the hunting and killing of a drug lord, are sadistically celebrated, they are not practical. As a result, Congress has determined that the best way to combat illegal trafficking is to remove the incentive by stripping the profits from the drug dealers through asset forfeiture.(10)

   The civil forfeiture statute(11) has evolved into a powerful weapon in the government's war on drugs. That evolution has included the enactment of various provisions which have significantly expanded the reach of civil forfeiture. Among those was the enactment of [sections] 881 (a) (7), which extended the scope of civil forfeiture to include real property.(12) Recognizing the potentially harsh effects of the statute, Congress provided an affirmative defense to owners of real property who are innocent of illegal activity. This "innocent owner" defense allows real property owners to avoid forfeiture by proving that the illegal activity occurred without their "knowledge or consent." This provision has caused courts to consider whether claimants must show a lack of both knowledge and consent, or merely a lack of one or the other.

   This comment will examine that controversy. Part II will set the stage by exploring the history of forfeiture law, discussing the development and evolution of 21 U.S.C. [sections] 881 to its current state, and describing the procedure outlined in the statute. Part III will then explain the promulgation of the "innocent owner" defense and describe the controversy over its interpretation. Next, Part IV will examine the language of the "innocent owner" provision, its legislative history, the legislative history of related provisions, and subsequent clarifications of the provision by Congress. A thorough analysis of these sources will show that claimants must prove a lack of both knowledge and consent to satisfy the terms of the provision. This Part will then examine equitable and constitutional considerations which strengthen that interpretation. Finally, Part V recognizes the inadequacy of the current statute, encourages Congress to address the issue, and suggests a new version of the "innocent owner" provision.

2. SETTING THE STAGE

   1. HISTORY

      The concept of civil forfeiture is firmly rooted in history. Its origins date back to the Old Testament.(13) It Was recognized in ancient Rome,(14) as well as in ancient Greece.(15) Initially, most societies viewed forfeiture as a way to punish property that caused injury to a person.(16) Superstition led people to personify the property, place blame upon it for the injury or wrong, and believe that it suffered morally.(17) In certain cases, this belief was so strong that the property was forfeited even if it belonged to the injured party.(18)

      Modern statutes allowing for civil in rem forfeiture appear to have evolved most closely from the concept of the English deodand.(19) Under early English law, anything causing the death of one of the King's subjects was forfeited to the Crown.(20) The object forfeited, the deodand, was considered an "accused thing."(21) Once forfeited, the object was supposed to be put to charitable uses.(22) Over time, however, the practice became corrupt, and the king used the property for his own benefit, as a source of revenue.(23) As a result, the colonists did not carry the concept of the deodand with them across the Atlantic.(24) They did, however, continue to utilize civil forfeiture as a means of enforcing the law.(25)

      After the ratification of the Constitution, the Federal government began enforcing forfeiture statutes.(26) Initially, the government used its forfeiture power to seize ships and cargos used in the illegal slave trade, as well as vessels involved in customs offenses.(27) Congress soon expanded its use of forfeiture, and "[f]or more than two hundred years, Congress has continued to pass civil, in rem, forfeiture statutes covering a substantial variety of property."(28) In fact, "contemporary federal and State forfeiture statutes reach virtually any type of property that might be used in the conduct of a criminal enterprise."(29)

      Until recently, two aspects of civil forfeiture had remained constant: its relative insignificance as a law enforcement tool(30) and the irrelevance of the innocence of the owner of property seized.(31) This irrelevance was "firmly fixed in the punitive and remedial jurisprudence of the country."(32) In 1970, however, Congress propelled forfeiture into its present place in the front lines of the government's war on drugs and paved the way for the battle over innocent ownership rights.

   2. DEVELOPMENT OF 21 U.S.C. [sections] 881

      In an effort to strengthen law enforcement authority against drug trafficking,(33) Congress passed The Comprehensive Drug Abuse Prevention and Control Act of 1970 as part of the Controlled Substances Act.(34) Congress recognized that the motivation for drug trafficking was economic profit(35) and realized that it needed something more than ordinary criminal sanctions, such as fines and imprisonment, to deter people from dealing drugs.(36) Congress sought a means of eliminating the economic gain and thus removing the incentive to participate in the drug trade.(37) Forfeiture became Congress' weapon of choice.(38)

      Originally, [sections] 881 authorized the forfeiture of controlled substances, raw materials, containers, and conveyances used or intended for use in drug related activities.(39) However, by 1978, Congress realized that the forfeiture laws were not producing the desired results.(40) Therefore, in 1978, Congress amended the Comprehensive Drug Abuse Prevention and Control Act and increased the effectiveness of forfeiture by expanding the scope of the forfeiture provision to allow the forfeiture of all proceeds derived from drug transactions.(41) In this manner, Congress hoped to strike directly at the heart of the problem--the potential to realize incredible profits through drug dealing.(42) By 1984, however, Congress remained unsatisfied with the impact of the expanded forfeiture laws. Drug profits were not being undercut.(43) Apparently the scope of property subject to forfeiture was still too limited for Congress' taste, because the statute did not provide for the forfeiture of real property, even if that property was instrumental to the performance of illicit activities.(44) As a result, in 1984, Congress added [sections] 881 (a) (7) to 21 U.S.C., expanding the class of property subject to forfeiture to include all real property used in any manner to facilitate a violation of drug laws.(45)

   3. PROCEDURE UNDER 21 U.S.C. [sections] 881

      A civil forfeiture occurs when the government takes illegally used or acquired property without compensating its owner.(46) A forfeiture action, an in rem procedure,(47) commences when the government seizes property believed to be connected with illegal drug activity.(48) Ownership of the property vests in the government at the time the property is used for an illegal purpose.(49) But once the government has seized the property, it must begin a formal forfeiture action within five years of the discovery of the alleged offense.(50)

      Initially, the burden of proof is on the government to show probable cause that the seized property was connected with illegal drug activity.(51) Courts have defined probable cause as "a reasonable ground for belief of guilt, supported by less than prima facie proof, but more than reasonable suspicion."(52) Once the government shows probable cause, the burden shifts to claimants to prove, by a preponderance of the evidence, either that the property was not connected in any way with the illicit activity, or that they qualify for "innocent owner" exemption under the relevant statutory provision.(53)

3. PREPARING FOR BATTLE

   1. INNOCENT OWNERSHIP PROVISIONS IN [sections] 881 (A)

      Historically, the only remedy for an innocent owner with an interest in forfeited property was to petition the United States Attorney General for remission or mitigation.(54) Property owners could not prevent forfeiture of their ownership rights by arguing that they were innocent of drug activity; they could merely request that the Attorney General return all or part of the property.(55) In 1978, however, Congress amended [sections] 881 (a)(6) and provided protection for owners who had no "knowledge or consent" of the illegal activity in which their property was involved.(56) When real property became forfeitable under [sections] 881, Congress added another "innocent owner" provision to protect property owners whose property had been used in violation of the law without their "knowledge or consent."(57) In 1988, an amendment to 21 U.S.C. [sections] 881 (a)(4) added a requirement that claimants prove the illegal activity occurred without their "knowledge, consent, or willful...