A License to Steal: The Forfeiture of Property.

• Author: Porter, Philip K.

Designed as a weapon to wield against the economic might of organized crime, the laws of civil forfeiture have instead become a license to steal - a license increasingly used on the small and weak to feather the nests of law enforcement agencies.

Civil forfeiture is based on the curious legal fiction that property can be guilty. Ancient superstitions held that objects could be evil and, if so, should be punished. If a tree's limb fell on a woman or a bull gouged a man the tree or the bull was taken by the sovereign as a form of community atonement. Civil forfeiture has outlived the myth of evil objects because it benefits the state and this raison d'etre is why it is abused. Today, forfeited property is used by the law enforcement agencies that seize it. Levy quotes a Customs Service official, "if the police had, 'a guy with a ton of marijuana and no assets versus a guy with two joints and a Lear jet, I guarantee you they'll bust the guy with the Lear jet.'"

While we have long had criminal forfeiture laws in the U.S., civil forfeiture is a recent development. In criminal forfeiture an individual must first be convicted before the property used in crime or acquired as a result of crime can be seized. In cases brought against organized crime figures the property in question would disappear before a conviction could be gotten and while a few crime bosses might go to jail the economic base of their organization would survive. Law enforcement agencies lobbied for the power to seize the assets of suspected criminals before they could be spirited away. From extensions and revision to the Racketeer Influenced and Corrupt Organizations Act and the Continuing Criminal Enterprise Act emerged in rein civil proceeding, wherein, the suspect property is seized and the owner bears the burden to prove (by a preponderance of evidence) that the property is innocent.

Today, civil forfeiture is being challenged on several constitutional grounds. The courts realize that civil forfeiture is being used to exact punishment for criminal activities but do not extend to the owner of the property all of the protection afforded one accused of...