Forfeiture Policy in the United States

• Author: David Pimentel
• DOI: http://doi.org/10.1111/1745-9133.12343
• Date: 01 February 2018
• Published date: 01 February 2018

POLICY ESSAY

CIVIL ASSET FORFEITURE LAWS

Forfeiture Policy in the United States

Is There Hope for Reform?

David Pimentel

University of Idaho College of Law

The concept of civil forfeiture is an old one that dates back hundreds of years

to when the Navigation Acts authorized the British Crown to seize (and keep)

the ships used by pirates and smugglers (Doyle, 2007). The ships seized were

treated as “prizes” that redounded to the benefit and profit of the agents who seized them,

including but not limited to the captains and crews of the Royal Navy (Doyle, 2007;

Hingham Heritage Museum, 2013). The United States recognized the legitimacy of such

ship seizures, under similar laws, early in U.S. history (Pimentel, 2012).

This hoary history of civil forfeitures gives it an air of legitimacy somehow, and the

U.S. Supreme Court has been reluctant to tamper with it, at least in part because of its

long history, in two key 20th-century cases. Even in the face of outrageous injustice carried

out under state forfeiture laws, the Supreme Court concluded in Goldsmith-Grant Co. v.

United States (1921) that there was no constitutional violation for police to seize and keep

the property of an entirely innocent party, someone not even suspected of wrongdoing. In

that case, in 1921, a car had been used for running liquor during Prohibition, and federal

agents seized the car. The lender who had financed the purchase of the vehicle—apparently

never suspected of involvement in the moonshine operation—challenged the government

seizure as it had lost its security interest as a result. The Supreme Court was unmoved:

“[W]hether the reason for [the challenged forfeiture scheme] be artificial or real, it is too

firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced”

(Goldsmith-Grant).

The holding and its rationale were reaffirmed 75 years later in Bennis v. Michigan

(1996), involving the seizure of a family car after the husband had been charged with

engaging a prostitute in it. The Supreme Court upheld the forfeiture of the wife’s share

of the car despite the compelling equities in her favor. By reaffirming Goldsmith-Grant

Direct correspondence to David Pimentel, University of Idaho College of Law, 875 Perimeter Dr., MS 2321,

Moscow, ID 83844-2321 (e-mail: dpimentel@uidaho.edu).

DOI:10.1111/1745-9133.12343 C2018 American Society of Criminology 129

Criminology & Public Policy rVolume 17 rIssue 1