A License to Steal: The Forfeiture of Property.

• Author: Hakala, Leslie A.

By Leonard Levy. Chapel Hill: University of North Carolina Press, 1996. Pp. xi, 272. $29.95.

It is every legal scholar's worst nightmare. What could be worse than writing a book advocating a certain viewpoint on a topic of current debate, only to have the Supreme Court flatly reject your position in the months following publication? This misfortune happened not once, but twice, to Leonard Levy, author of A License to Steal: The Forfeiture of Property. Levy argues that current forfeiture practices are both unfair and unconstitutional; within the past year, however, the Supreme Court in both Bennis v. Michigan(1) and United States v. Ursery(2) upheld forfeiture in the face of constitutional challenges. Although these decisions run counter to Levy's argument, they do not render Levy's work irrelevant. Rather, they underscore the timeliness of Levy's subject and its controversial nature.

Levy's central thesis is that "[l]aw enforcement agencies--federal, state, and local--perpetrate astonishing outrages on owners of private property through forfeitures," in large part because "forfeiture is a seductive source of new revenue for law enforcement agencies" (pp. 1-2). While Levy's criticisms of forfeiture are not altogether new, he provides a detailed history of forfeiture and makes four interesting arguments against forfeiture: that the absurd origins of forfeiture delegitimate its use today; that police officers abuse forfeiture in practice; that many forfeiture laws tread upon the rights of innocent third parties; and that forfeiture violates the Constitution. Levy's argument that forfeiture is abused in practice is compelling, but his other arguments remain unconvincing.

In A License to Steal, Levy attempts to explain both historical and modern forfeiture and to describe the serious problems inherent in the practice. Throughout his treatment of the forfeiture issue, Levy ambitiously discusses both civil and criminal forfeiture.(3) Levy devotes much of the book to an in depth examination of the history of forfeiture, starting with the Middle Ages.(4) He explains that the legal fiction surrounding civil forfeiture originated with the law of the deodand, which held that an inanimate object that caused a death was tainted and therefore must be forfeited to the king (pp. 8-20). In contrast, criminal forfeiture finds its roots in the king's practice of confiscating the properties of felons and traitors (p. 24). After tracing the development of forfeiture through several centuries, Levy concludes his historical exposition with a section discussing the enactment of modern statutory forfeiture practices.

Following this extensive exploration of the roots of forfeiture, Levy turns his attention to modern practices, vigorously attacking current forfeiture regimes. He argues that forfeiture is improperly implemented, ignores the rights of innocent third parties, and is blatantly unconstitutional. Levy then briefly discusses prospects for reform.(5) He advocates abolishing civil forfeiture, ending the practice of returning the proceeds of forfeiture to law enforcement agencies, and implementing a universal innocent owner defense (pp. 213-17), but he concludes that extensive forfeiture reform may occur only in the distant future (p. 227).

While Levy's frontal attack on forfeiture is thought-provoking, it largely fails because three of the four arguments that Levy invokes are flawed. First, Levy uses his journey through history to demonstrate the senseless origins of forfeiture. Implicit in this discussion is the absurdity of perpetuating a system that attributed evil to an ox, a tree, a boat, and a broadsword (pp. 15-20). But such an argument fails to address the subject on its own terms. The irrational origins of forfeiture have only limited relevance in assessing its merits and legality today.

Levy's second antiforfeiture argument is that law enforcement agencies abuse forfeiture practices to collect small fortunes in revenue. According to Levy, "[P]olice become[] dominated by revenue enhancement that benefits them, diverting them from law enforcement for its own sake. Law enforcement becomes subordinated to making money for one's department" (p. 152). Under the practice of equitable sharing, a community receives part of the value of assets it helps seize, so long as that money is spent only on law enforcement (p. 145). Levy claims that equitable sharing exacerbates the potential for abuse at the local...