Proposing a transactional approach to civil forfeiture reform.

• Author: van den Berg, Michael
• Position: IV. Potential Solutions B. Expanding Constitutional Defenses 2. The Due Process Clauses of the Fifth and Fourteenth Amendments through Conclusion, with footnotes, p. 897-926

2. The Due Process Clauses of the Fifth and Fourteenth Amendments

   Due process was one of the explicit concerns underlying CAFRA. Representative Henry Hyde, sponsor of CAFRA, openly recognized that "[d]ue process is overdue for some protection." (158) Forfeiture implicates multiple due process issues, three of which are discussed here.

   First, forfeiture implicates procedural due process concerns about court access. The Court and CAFRA have both largely addressed this issue. In James Daniel Good, the Court held that the Due Process Clause protected owners from having their real property seized by the government without being afforded the right to be heard in court. (159) This decision brought real property forfeiture squarely within the ambit of procedural due process protection. (160) The Court has also drawn links between the right to own property in a community and the right of access to its courts, finding the two implicitly related: "[t]he right of a citizen to defend his property against attack in a court is corollary to the plaintiff's right to sue there." (161) CAFRA has also picked up the torch, requiring notice for seizures of real property. (162)

   Unfortunately, although James Daniel Good extended procedural due process protection to real property forfeiture, (163) it is unlikely that such protection would ever extend to MVC or LVC. Indeed, the Court in James Daniel Good explicitly held that the due process protections afforded to the defendant in that case would not apply to chattel. (164)

   The Court's reasoning depended heavily on a test laid out in Mathews v. Eldridge. (165) The Mathews test determines when "extraordinary circumstances" exist to excuse the requirement of pre-hearing notice. (166) The three Mathews factors--(1) the nature of the private interest at stake, (2) the risk of error associated with the procedure used, and (3) the government's interest, including the administrative burden of a more elaborate procedure (167)--weigh heavily against extending procedural due process protection to MVC and LVC. (168)

   The third factor proves the most directly problematic for chattel. In James Daniel Good, the Court found critical the fact that the real property could not be removed from the seizing court's jurisdiction pending the hearing. (169) The Court contrasted Calero-Toledo, (170) and insinuated that pre-forfeiture notice for chattel is almost never appropriate, recognizing the importance of immediate seizure to maintaining a court's jurisdiction over movable property. (171)

   This statutory framework has been used to provide forfeiture protection for automobiles. In Krimstock v. Kelly, the Second Circuit applied the Mathews factors to a New York statute that provided for the forfeiture of automobiles. (172) Then-Judge Sotomayor considered the deprivation of the claimant's vehicle, which she noted was significant due to the centrality of a vehicle to an individual's ability to earn a living. (173) She weighed this against the State's interest in keeping potentially forfeitable property safe from destruction or sale. (174) Finally, Judge Sotomayor noted that the city's pre- seizure procedures did not adequately protect against the erroneous deprivation of an interest. (175) As such, Judge Sotomayor found that the Mathews test required due process protections for automobiles, including swift hearings after their seizure. (176)

   Although Judge Sotomayor's opinion provides some hope for expanding procedural due process protection to chattel, it is unlikely this would help protect MVC or LVC for two reasons. First, key to the first component of the Mathews test was the fact that vehicles are so central to their owners and are often the lynchpin of their livelihoods. (177) The same cannot be said of MVC or LVC, which often consist of personal property, jewelry, or petty cash, which do not bear as directly on an individual's ability to earn a living. Second, in Krimstock, Judge Sotomayor continued to rely on the fact that the vehicles at issue--cars seized pursuant to a DUI arrest--were already in the State's possession and thus immovable, unlike the yacht in Calero-Toledo. (178) Again, this offers little help for protecting MVC or LVC, which are usually eminently transportable.

   Mobility is a concern because the central notion of forfeiture depends on the res actually being before the court. (179) Thus, since any form of chattel--no matter how valuable--can be removed from the seizing court's jurisdiction pending a hearing, courts are unlikely to extend procedural due process protection to MVC or LVC. (180)

   Civil forfeiture also invokes a substantive due process issue: impartiality. Indeed, impartiality is essential to justice, and the principle is embedded in the due process guarantee. The Court has found the right abridged whenever a conflict exists that could "offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true." (181)

   The Court, in Marshall v. Jerrico, Inc., created a problematic precedent for those seeking to extend the conflict of interest doctrine into the forfeiture context. (182) In Jerrico, the defendant, a restaurant management company, challenged a provision in the Fair Labor Standards Act requiring the return of fines to the enforcing agency to defray the costs of enforcement. (183) The defendant argued that "this provision created an impermissible risk and appearance of bias by encouraging the assistant regional administrator to make unduly numerous and large assessments of civil penalties." (184)

   The Court, however, after restating the principle that "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases," found for the government. (185) The Court distinguished previous impartiality cases--including, most centrally, Turney v. Ohio (186)--and held that the remuneration provision did not create impermissible bias. The Court distinguished Tumey on the basis that, in Jerrico, no official's salary depended directly on the level of fines and the fines amounted to less than one percent of the Employment Standards Administration's annual budget. (187)

   From Jerrico, we can coalesce three concerns that determine impartiality: financial dependence, personal interest, and funding formulas. (188) Importantly, the Court has drawn a sharp distinction between prosecutorial and judicial impartiality. (189)

   Despite this distinction, it seems clear that an application of the three Jerrico factors to forfeiture could find that forfeiture impinges on impartiality. Although personal interest on the prosecutors' part may be lacking, as discussed infra, prosecutors and police have a marked pecuniary interest in high levels of forfeiture. (190) Moreover, the distinction may be artificial: "the Court's sharp distinction between judicial and prosecutorial standards is controversial and belies the overwhelmingly dispositive role of discretionary prosecutorial decisions in a system where few cases ever go to trial." (191)

   But even accepting arguendo the Jerrico distinction, its application to civil forfeiture is tenuous. The actions of police and prosecutors seeking forfeiture are substantively different than that of the ESA in Jerrico. Indeed, unlike the ESA, police agencies use violent and dangerous tactics, which threaten liberty and life in ways not contemplated in Jerrico. (192)

   Substantive due process protection in the form of impartiality requirements unfortunately does not also hold out much hope for protecting MVC and LVC. As noted, the Court in Jerrico repeatedly distinguished between adjudicative officials and prosecutors, noting that prosecutors need not remain "neutral and detached." (193) In an adversarial system, the courts strive to maintain incentives for prosecutors to zealously pursue justice. (194) Although the distorted profit mechanisms of civil forfeiture have led many to be disturbed by conflicts of interest, the Court has yet to step over the formalistic prosecutor-adjudicator divide to examine the real and looming conflict of interest.

   Finally, due process is implicated in the disturbing use of waivers in forfeiture. Although this issue is difficult to quantify as substantive or procedural, elements of both underpin this concern.

   Essentially, using waivers in forfeiture allows police departments to completely bypass the judicial system. Police departments entice individuals to sign away their rights to property via waiver in exchange for non-prosecution for some related offense. In Florida, Delane Johnson was required to sign away his property to avoid trial for another criminal charge. (195) Similarly, in Tenaha, Texas, prosecutors and police frequently threatened motorists with aggressive, felony drug charges if motorists would not agree to forfeit their property. (196) The use of these waivers should be invalidated under any theory of due process, since "[t]he use of asset- forfeiture waivers deprives property owners of due process because there are no forfeiture proceedings." (197)

   Thus, although due process should unequivocally eliminate some forfeiture programs--like the use of waivers in chattel seizure--it is unlikely to extend much real protection to MVC or LVC.

3. Excessive Fines Clause of the Eighth Amendment

   When asset forfeiture is partly punitive, it is subject to an excessive fines analysis. (198) The appropriate inquiry under this Eighth Amendment analysis is whether the forfeiture is "grossly disproportional to the offense." (199) Congress explicitly approved this standard in CAFRA by requiring the claimant to prove that the forfeiture was "grossly disproportional." (200)

   Unfortunately, there are two problems with this approach. The first is that lower courts selectively apply it, often distinguishing "proceeds" forfeiture from other types of forfeiture and refusing to undertake an Eighth Amendment analysis. (201) For instance, the Fifth...