A License to Steal: The Forfeiture of Property.

• Author: Herpel, Stefan B.

A License to Steal: The Forfeiture of Property. By Leonard Levy. Chapel Hill: The University of North Carolina Press. 1996. Pp. xiii, 272. $29.95.

Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United States Constitution,(1) has added to his impressive oeuvre a new study of civil and criminal forfeiture.(2) A License to Steal brings together a discussion of English legal history, a review of a number of Nineteenth Century and late Twentieth Century Supreme Court forfeiture decisions,(3) accounts of actual applications of civil and criminal forfeiture, and a summary and critique of legislative proposals that have been made for reform of the civil forfeiture provisions of the federal drug statute. There is more space devoted in the book to civil than criminal forfeiture because, as Levy explains, criminal forfeiture was not widely used through most of the country's history.(4) Levy discusses criminal forfeiture primarily to contrast it with civil forfeiture, which affords virtually none of the procedural protections that are taken for granted in criminal prosecutions. What emerges clearly and forcefully in this book is that civil in rem forfeiture proceedings have been used ---and increasingly are being used(5) -- as an expedient to circumvent the usual protections accorded to defendants in criminal proceedings, and to augment federal, state, and local treasuries. Drawn primarily from secondary sources, A License to Steal is footnoted throughout and contains an excellent bibliography.

There is much of value in A License to Steal. The book provides a concise and entertaining summary of the historical origins of modern civil and criminal forfeiture in early English law. Levy's discussion of the old English law of "deodands" (pp. 7-20), under which inanimate objects which accidentally caused the death of another human being were forfeited to the Crown, is informative and thought-provoking, and he provides a fascinating digression on the trial and execution of animals, a practice which began in medieval times and continues to this day in some jurisdictions (p. 11). He also summarizes the operation of the complex of statutes known as the English Navigation and Trade Acts, which were enacted in the Seventeenth and Eighteenth Centuries (pp. 39-46). Levy concludes, as others have,(6) that the deodand never truly became a part of the American common law (p. 14), and that the development of civil forfeiture here after Independence owes far more to the tradition of in rem forfeiture proceedings in English and Colonial admiralty courts (p. 39).

A License to Steal includes a number of contemporary accounts of civil forfeiture abuse,(7) some drawn from reported cases and others from media reports or official investigations into abuse.(8) Levy makes clear that the abuses described in these compelling accounts -- including the forfeiture of property of completely blameless persons -- are attributable to the one-sided powers accorded to government in effecting forfeitures. These include the right of authorities to seize, without prior notice or a hearing, cash or personal property simply on the basis that there is "probable cause" to believe it is forfeitable(9) and the placement of the burden of proving that the property is not forfeitable on the property owner in the ensuing forfeiture proceeding.(10)

While A License to Steal provides important historical information, and does much to expose the use of civil forfeiture as a tool of tyranny, the book suffers somewhat from the uneven quality of its writing and from errors in the analysis of certain cases and statutes. In general, the writing -- or perhaps the editing -- does not seem to be up to the usual high standard of Levy's prior books. There are some awkward constructions,(11) and the writing too often lacks the precision(12) clarity(13) and economy that one would expect in a book of this kind.

There are also mistakes in Levy's explanations of the operation of particular forfeiture statutes, and of the holdings in several recent Supreme Court forfeiture decisions. For example, in discussing the criminal forfeiture provisions of the federal drug law,(14) Levy asserts that "the judgment of forfeiture in a criminal case is based on a jury's determination that the defendant is guilty and that beyond all reasonable doubt the property was somehow involved in the crime" (p. 170). In fact, correctly or not, the courts that have addressed this issue have construed the statute to require that, consistent with traditional roles for factfinding at the sentencing stage, the relationship between the property and the crime need only be established by a mere preponderance of the evidence.(15)

Levy also incorrectly describes the effect of the position the government took in United States v. James Daniel Good Real Property.(16) Levy asserts that "[r]ecognition of the government's argument would have meant that innocent owners would be unable to show that a violation involving their property had occurred without their knowledge or consent" (p. 192). In fact, the Court's adoption of the government's argument would not have precluded the assertion of the innocent owner defense altogether; rather, it simply would have restricted the purposes for which the defense could be offered. The government in James Daniel Good Real Property sought the power to seize ex parte a home prior to obtaining a judgment in an in rem forfeiture hearing, and to begin collecting the rents being paid by the owner's tenant. Nothing in the government's position would, as a legal matter, have precluded the owner from asserting his innocence as a defense to the forfeiture action. The owner would instead have been precluded from making that argument (or any other) to contest the right of the government to seize control of the home before entry of judgment.(17)

1. A PROPOSAL FOR A PROCEDURAL DUE PROCESS-BASED PROHIBITION. AGAINST THE USE OF CIVIL FORFEITURE OUTSIDE ITS TRADITIONAL APPLICATIONS IN REVENUE, MARITIME, AND WAR POWER CASES

   Perhaps because Levy's approach in A License to Steal is primarily historical rather than analytical, his book does not attempt to develop any broad theory for determining whether a particular use of civil, as opposed to criminal forfeiture is constitutional. Nor does he ever acknowledge that the history and rationale of Eighteenth- and Nineteenth-Century uses of civil forfeiture could be relevant to assessing the constitutionality of a contemporary civil forfeiture statute (or its application) that goes far beyond the limited scope of early civil forfeiture. Indeed, since Levy condemns certain early civil forfeitures with the same passion with which he condemns other civil forfeitures (pp. 57-58), he may well be unwilling to concede the constitutionality of any application of civil forfeiture, including applications that were utilized in the Eighteenth and Nineteenth centuries in this country, and in England and her colonies in earlier periods.

   In Part I of this review, I will therefore attempt to sketch a constitutional theory for determining under what circumstances governments may forfeit property in civil, as opposed to criminal proceedings. Levy's historical discussion in A License to Steal indicates that through much of this country's history, civil forfeiture operated, with rare exceptions, within the rather narrow confines of revenue and admiralty law and the war-making power. Civil forfeiture was used almost exclusively to redress violations of revenue and maritime offenses and to provide a legal mechanism for seizing enemy property in wartime. Most of the significant expansion in the use and scope of civil forfeiture has occurred in the last two decades.

   Part I of this review will describe those three traditional uses of forfeiture and their rationales as expressed in judicial opinions. I will then argue that the long history of these three uses of forfeiture -- together with the special circumstances that justified those uses -- provides a solid foundation for a due process, band limitation regarding the use of forfeiture. Finally, I will show how the Supreme Court has largely overlooked the historical limitations on the scope of civil forfeiture, with the result that its constitutional analysis of forfeiture has become riddled with contradictions.

   Under the most far-reaching due process limitation that the Court could adopt, the use of civil in rem forfeiture outside its traditional applications in the revenue, maritime, and wartime fields would simply be prohibited as a general matter. If forfeiture were to be used as a sanction for the commission of an offense, it would have to be administered in a criminal proceeding that was conducted with the full panoply of procedural protections that apply in such proceedings.(18)

   Implementation of such a limitation would have profound ramifications for the law of forfeiture. It would render unconstitutional much of the significant extension of civil forfeiture that has occurred at the state and federal level in the last two decades, and would greatly restrict further expansion. Furthermore, it would eliminate many of the doctrinal contradictions that abound in the Court's constitutional decisions involving civil forfeiture. But the historical analysis undertaken by Levy will also support less ambitious constitutional objectives than the "criminalization" of a significant class of forfeitures. Recognition of the limited scope of and rationale for the early forms of forfeiture would aid the Court in fashioning specific due process protections for civil forfeiture proceedings, even if they remained civil in form. While not as far-reaching as the criminalization of forfeiture, the incremental fashioning of particular due process protections can still go a long way toward eliminating some of the worst abuses of civil forfeiture.

   In Part II of this...