AuthorJeffrey Lehman, Shirelle Phelps

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The involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime. The loss of a corporate charter or franchise as a result of illegality, malfeasance, or NONFEASANCE. The surrender by an owner of his or her entire interest in real property, mandated by law as a punishment for illegal conduct or NEGLIGENCE. Under old ENGLISH LAW, the release of land by a tenant to the tenant's lord due to some breach of conduct, or the loss of goods or chattels (articles of PERSONAL PROPERTY) assessed as a penalty against the perpetrator of some crime or offense and as a recompense to the injured party.

Forfeiture is a broad term that can be used to describe any loss of property without compensation. A forfeiture may be privately arranged. For example, in a contractual relationship, one party may be required to forfeit specified property if the party fails to fulfill its contractual obligations. Courts are often called upon to resolve disputes regarding a forfeiture of property pursuant to a private contract. They may examine these cases to see whether they are fair and not the result of duress, deception, or other nefarious tactics.

The forfeitures that inspire the most discussion in the U.S. are those that are exercised by the state or federal government. Congress and state legislatures maintain statutes that allow law enforcement to seize property on suspicion of certain criminal activity. The property can be forfeited to the government upon conviction. In many cases, forfeiture to the government occurs without criminal prosecution.

The general concept of forfeiture in the United States can be traced to the English COMMON LAW, or court decisions. English courts recognized three types of forfeiture: ESCHEAT upon attainder, deodand, and statutory forfeiture. Under the doctrine of escheat upon attainder, a person's property reverted to the government upon that person's conviction for a felony or TREASON. This doctrine was premised on the theory that the sovereign government possessed a superior property interest.

The doctrine of deodand, or guilty property, allowed English courts to strip a person of property if the property was involved in a certain offense. This doctrine allowed a court to seize property regardless of the owner's culpability. For example, if a horse caused the death of a person, the owner would lose that horse, even if he had been completely blameless.

Statutory forfeiture, or forfeiture based on written laws, was the only kind of English forfeiture recognized in the American colonies. In other words, the colonies did not order the forfeiture of property unless it was required pursuant to a law passed by the legislature. However, the written laws in the colonies sustained the concept of deodand, and this concept survives to the present day.

Although forfeiture laws have existed in the United States since the colonial period, they have not always been favored. Early cases of forfeiture usually involved extraordinary circumstances, such as the seizure of pirate ships or warring ships. After the Civil War, forfeitures were used for tax-revenue violations, but government-imposed forfeiture was a rarity.

In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (21U.S.C.A. § 881), also known as the Forfeiture Act. The Forfeiture Act authorized federal prosecutors to bring civil forfeiture actions against certain properties that were owned by persons who had been convicted in federal court of dealing drugs. This act was seldom used because it limited forfeiture to the property of persons who had been convicted of participating in continuing criminal enterprises.

In 1978, Congress amended the Forfeiture Act to allow the forfeiture of anything of value used or that was intended to be used by a person to purchase illegal drugs (Psychotropic Substances Act of 1978 [Pub. L. No. 95-633, tit. III, § 301(a), 92 Stat. 3768, 3777 (codified as amended at 21 U.S.C.A. § 8821(a)(6))]). This change expanded the Forfeiture Act to allow the

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forfeiture of all proceeds and property that were traceable to the purchase of an illegal drug. Under the 1978 amendments, the federal government was authorized to proceed in rem against property. In...

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