FEATURE CONTENTS INTRODUCTION I. IN REM VERSUS IN PERSONAM A. A Brief History of In Rem Forfeiture B. Might History Support In Rem Forfeiture Proceedings Only Where In Personam Proceedings Would Have Been Difficult? C. In Rem Forfeiture of the Proceeds of Illegal Transactions D. The Modern Convergence of In Rem and In Personam Procedures II. CIVIL VERSUS CRIMINAL A. The Path to Current Doctrine B. The Perils of Equating "Punitive" with "Criminal" C. Historical Support for the Category of Civil Punishment III. ADMINISTRATIVE VERSUS JUDICIAL CONCLUSION INTRODUCTION
Everyone knows that the law denies people property rights in illegal drugs and other contraband. (1) But nonlawyers sometimes are startled to learn that the law also strips people of property rights in everyday items that simply have been used in a prohibited way. For instance, when someone transports illegal drugs in a car, the federal Controlled Substances Act provides that ownership of the car thereby passes to the federal government. (2) Many other categories of property, including houses and land as well as personal property, are similarly "subject to forfeiture to the United States" if they are used in connection with drug trafficking or if they are the proceeds of such trafficking. (3) In the words of the Controlled Substances Act, "no property right shall exist in [these things]" (4) and "[a]ll right, title, and interest in [them] ... shall vest in the United States upon commission of the act giving rise to forfeiture." (5)
To enforce these forfeitures, the government can use a special set of procedures that may startle even lawyers. When the government alleges that personal property has been forfeited under the Controlled Substances Act, the government often can perfect its title without going to court (aside, perhaps, from the ex parte process of getting a warrant to seize the property in the first place). (6) The government does have to provide public notice of the seizure and its intention to declare the property's forfeiture, and the government must also send written notice "to each party who appears to have an interest in the seized article." (7) Any interested person who wants to contest the government's position can trigger judicial proceedings by filing a claim to the property. (8) But that is not always advisable; the relevant judicial proceedings might take the form of a criminal prosecution against the claimant, (9) and in any event they might cost the claimant more than the property is worth. (10) Whether for those reasons or because the government is usually correct, most forfeitures under the federal drug laws are uncontested. (11) And if no one files a claim within a fairly short deadline, the process need go no further: an administrative official can issue a binding declaration of forfeiture, clearing the way for the government to sell the property at auction or retain it for the government's own use. (12)
Under current federal law, this method of "administrative forfeiture" is available only for personal property (including cash), (13) and only when no one files a claim. But even when the government needs to get the courts involved, the government does not have to proceed in personam against the former owner. Instead, the government often can seek judicial confirmation of its ownership through proceedings in rem against the property itself. (14) While claimants have a right to participate in these "civil-forfeiture" proceedings, (15) they usually have no right to appointed counsel, (16) and they also lack some of the other procedural advantages that would attend a criminal prosecution. For instance, instead of having to prove each element of a criminal offense beyond a reasonable doubt, the government need only prove that the property is subject to forfeiture by a preponderance of the evidence. (17)
Over the past few decades, these practices have gone through a cycle of expansion and reform. Starting in the 1970s and accelerating in the 1980s, Congress and state legislatures made civil and administrative forfeiture an increasingly prominent tool of law enforcement, first in the war on drugs and then in other areas. (18) In the 1990s, critics across the political spectrum (19) raised concerns about the plight of innocent owners who were not themselves responsible for the misuse of their property, (20) the dangers of letting police departments and other enforcement agencies fund themselves through forfeiture, (21) and the need for more procedural safeguards to guard against erroneous or abusive confiscations of property. (22) Congress responded to some of these criticisms by enacting the Civil Asset Forfeiture Reform Act of 2000, (23) which made targeted changes to federal forfeiture laws. (24) More recently, the Department of Justice has been reviewing its asset-forfeiture program, and the Department has announced new restrictions on how it will use a few of the powers that federal law gives it. (25) Some state legislatures have gone much farther; nine states require most forfeitures to be predicated on criminal convictions, (26) and one of those states no longer authorizes civil forfeiture at all. (27) Still, at the federal level and in most states, a great deal of forfeiture continues to occur outside the criminal process. (28)
Groups ranging from the American Civil Liberties Union (29) and the National Association of Criminal Defense Lawyers (30) to the Heritage Foundation (31) and the Institute for Justice (32) are pushing for further legislative reform. Ever since the 1990s, however, some lawyers and scholars have been as Icing a more basic question: are civil and administrative forfeiture even constitutional? (33)
This Feature examines evidence bearing on how originalists, in particular, might analyze that question. More precisely, this Feature evaluates the constitutionality of civil and administrative forfeiture from the perspective of the version of originalism that I accept, in which historical research can serve at least two different functions. (34) To the extent that particular constitutional provisions have a determinate "original meaning," historical research may help modern readers identify that meaning. (35) But to the extent that the original meaning of the Constitution is indeterminate, historical research can also help establish how those indeterminacies were resolved or "liquidated" over time. As I have discussed elsewhere, (36) the concept of "liquidation" was prominent during the Founding era, when the verb "to liquidate" could mean "to render unambiguous." (37) Just as a "liquidated damages" clause in a contract might pick a single number from a range of possibilities, (38) so too leading members of the Founding generation anticipated that post-Founding practices or precedents would settle on one of the permissible interpretations of provisions that lent themselves to multiple readings. (39) In the absence of "extraordinary and peculiar circumstances," (40) moreover, those liquidations were expected to be permanent; they would fix the Constitution's meaning on points that could otherwise have been disputed. (41)
For anyone who accepts the concept of liquidation, (42) it seems likely to play a prominent role in debates about civil forfeiture. The constitutional provisions that may be most directly relevant-the prohibitions on depriving people of property "without due process of law" (43)--are widely thought to be at least somewhat indeterminate. (44) As modern courts and commentators well know, moreover, civil forfeiture has an impressive historical pedigree: the practice dates back to colonial America, continued unabated after the Founding, and has not been rejected even today. (45)
Of course, the facts that myriad early statutes included forfeiture provisions and that courts willingly enforced those provisions through civil proceedings in rem do not automatically prove that civil forfeiture comports with the original meaning of the Constitution. Precisely because civil forfeiture predated the Founding, early legislators and judges may simply have followed familiar practices without appreciating the legal import of the Due Process Clause or other relevant aspects of the Constitution. But to the extent that practice can liquidate the meaning of the Constitution on uncertain points, history tends to validate the constitutionality of civil forfeiture unless the history is more limited than it seems or the meaning of the Constitution is not uncertain.
Part I of this Feature considers possible limits on the history. Several modern authors have argued that most early statutes authorizing in rem forfeiture proceedings did so in contexts where the statutes' requirements could not reliably be enforced in personam, and these authors suggest that history does not validate the use of in rem forfeiture in other contexts. (46) There is something to that argument--but, in my view, not enough. Both at the federal level and in the states, various early statutes authorized forfeitures to be enforced in rem even in the absence of any obvious barrier to proceedings in personam. As far as I know, moreover, no early judges or lawyers interpreted the Due Process Clause or related constitutional provisions to draw the distinction that modern authors have suggested.
Part I goes on to consider a separate possible limitation. Historically, statutes authorizing in rent forfeiture reached only items that were themselves involved in illegal conduct, not items that simply were purchased with the proceeds of such conduct. The use of in rem process against the latter items is a modern development. Given other well-accepted legal principles, though, Part I concludes that this historical distinction does not...