The constitutionality of civil forfeiture.

• Author: Nelson, Caleb
• Position: I. In Rem Versus In Personam D. The Modern Convergence of In Rem and In Personam Procedures through Conclusion, with footnotes, p. 2482-2518

4. The Modern Convergence of In Rem and In Personam Procedures

   Even if the previous two Sections were not persuasive, there is a further reason to question the idea that modern forfeiture statutes cannot validly authorize proceedings in rem against the proceeds of illegal conduct, or that proceedings in rem are permissible only when responsible individuals cannot be pursued in personam. Arguments that the Due Process Clause requires certain types of forfeiture cases to proceed in personam rather than in rem assume that those two types of proceedings are quite different. That was true in the eighteenth and nineteenth centuries, but it is no longer so true today.

   Consider three important respects in which actions in rem used to differ dramatically from actions in personam.

   * Notice and preclusive effects. Traditionally, a court's decree about the ownership of property in an action in rem was said to bind the entire world, including people who had not been given any personalized notice of the proceedings. (177) Although the initial seizure of the property might supply notice to the person who had been in possession of the property at the time of the seizure, and although notice of the proceedings also had to be posted or published in a local newspaper, actions in rem did not require personal service of process on any particular individual. (178) In the mid-twentieth century, however, the Supreme Court held that whether a proceeding is characterized as in personam or in rem, the Due Process Clause demands "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (179) Thus, even in actions in rent, current doctrine requires "efforts to provide actual notice to all interested parties comparable to the efforts that were previously required only in in personam actions." (180) In keeping with this principle, modern rules prescribing the procedure for in rem forfeiture actions require the government to send personalized notice to people with known interests in the property. (181)

   * Jurisdiction. Traditionally, the Due Process Clause of the Fourteenth Amendment was thought to prevent a state from exercising in personam jurisdiction over an unconsenting defendant who did not owe allegiance to the state unless the defendant (or an agent authorized to receive summonses on his behalf) was served with a summons inside the state's borders. (182) By contrast, courts could exercise in rem jurisdiction over property that was located in the state no matter where any claimants might be found. Again, however, modern doctrine has narrowed this distinction. In the mid-twentieth century, the Supreme Court allowed in personam jurisdiction to expand; states can now send summonses beyond their borders to reach defendants who are not physically present in the state but who satisfy the "minimum contacts" test. (183) Conversely, the Court has cut back on the permissible reach of in rem jurisdiction, or at least quasi in rem jurisdiction. (184) Because of these twin developments, the outer limits of in rem jurisdiction now resemble--and may be identical to--the outer limits of in personam jurisdiction.

   * Burden of proof. In the typical in personam action, the plaintiff bears the burden of proving each of the elements of his or her cause of action against the defendant. Historically, the allocation of burdens of proof in actions in rem has been less clear. (185) Rather than leave the topic in the courts' hands, early federal customs statutes that included forfeiture provisions explicitly put the burden of proof on claimants who contested seizures or denied that property had been forfeited. (186) This allocation of the burden of proof came to be seen as a basic feature of the customs system, (187) and Congress extended it to other areas too. (188) In 2000, however, Congress rolled back those extensions. While claimants still have the burden of proof with respect to forfeitures under customs statutes, the Civil Asset Forfeiture Reform Act of 2000 established the following rule for most other federal statutes: "In a suit or action brought under any [federal] civil forfeiture statute for the civil forfeiture of any property[,] ... the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture...." (189) At least at the federal level, then, the burden of proof in most in rem forfeiture actions now resembles the burden of proof that would apply in civil actions in personam.

   To be sure, the traditional differences between actions in rem and actions in personam have not vanished completely. For instance, the typical action in rem still begins with the seizure of property, while the typical action in personam does not. In some other contexts, moreover, the Supreme Court has understood the Due Process Clause to require notice and an opportunity to be heard before the government removes property from someone's possession. (190) But even as the Court was establishing this doctrine, it recognized an exception for forfeiture proceedings. (191) Although the Court has since narrowed this exception so that an adversary hearing is normally required before the seizure of real property, (192) the government's ability to seize personal property without prior notice continues to distinguish in rem forfeiture proceedings from many other civil actions. Even this aspect of current doctrine, however, is not really about the difference between actions in rem and actions in personam. In allowing the government to seize movable personal property without advance notice for purposes of civil forfeiture, the Supreme Court reasoned that forfeiture proceedings implicate the same considerations that had justified dispensing with preseizure notice in other contexts. (193) Those considerations can be relevant whether an action is proceeding in rem or in personam.

   To the extent that the procedures used for actions in rem have converged with the procedures used for actions in personam, it is hard to argue that the Due Process Clause requires certain types of civil-forfeiture actions to proceed in personam rather than in rem. After all, if the procedures currently used for civil actions in personam would be adequate to satisfy the Due Process Clause, and if the procedures currently used for civil actions in rem supply essentially the same safeguards, then the mere fact that an action is denominated in rem rather than in personam should not matter.

   2. CIVIL VERSUS CRIMINAL

   Where forfeiture is concerned, though, perhaps the procedures currently used for civil actions in personam are not adequate to satisfy the Due Process Clause. The most fundamental argument that has been advanced against the constitutionality of civil-forfeiture statutes is that many of them purport to use civil process to achieve "criminal law objectives" (194): they authorize the government to punish people for violations of the law, but without the special safeguards that the Constitution requires for criminal prosecutions. According to many commentators, courts should not permit this end run around criminal procedure. (195) While the details of the commentators' arguments vary, the basic idea is simple: legislatures should not be able to avoid the constitutional safeguards for criminal prosecutions simply by authorizing the government to impose punishments through nominally "civil" proceedings.

   The modern Supreme Court has struggled with arguments of this sort. In the words of one thoughtful scholar, the distinction between "civil" and "criminal" proceedings is one of "the least well-considered and principled in American legal theory," and the Supreme Court's decisions on this topic are "as incoherent as any in the Court's jurisprudence." (196)

   At least where forfeiture is concerned, though, Part II.A suggests that the incoherence in the Court's doctrine did not really emerge until the last two decades of the nineteenth century. Even today, Part II.B agrees with the late J. Morris Clark that most of the Court's seemingly disparate results can be rationalized; there is an interpretation of the Constitution that largely fits the data points supplied by modern doctrine, and this interpretation does not foreclose the use of civil procedure to declare the forfeiture of property, even when the forfeiture serves the purpose of punishing or deterring forbidden behavior. Part II.C identifies strong historical support for Professor Clark's key insight.

1. The Path to Current Doctrine

   Early on, the Supreme Court took a clear position about how to characterize the typical forfeiture proceeding. The Court first discussed the issue in 1796, in a proceeding that the United States had initiated by information against a vessel that allegedly had been used to export arms in violation of federal law. (197) The district court had decreed a forfeiture, but a circuit court had reversed the decree on appeal. (198) Arguing that the matter "is a criminal cause" as to which "the judgment of the District Court is final," the United States asked the Supreme Court to hold that the circuit court had lacked jurisdiction. (199) But the Supreme Court declared itself "unanimously of opinion, that [this] is a civil cause: It is a process of the nature of a libel in rent; and does not, in any degree, touch the person of the offender." (200)

   The Marshall Court repeatedly took the same position, (201) as did many other courts. (202) In 1882, Rufus Waples thus observed that even though actions in rem for forfeiture could be "based upon criminal offenses committed in, with, or by the things proceeded against," such actions "are well settled to be civil, and not, in any sense, criminal actions." (203)

   Yet if this principle was "well settled" in 1882, the Supreme Court unsettled it just four years later. "We are ... clearly of opinion," the Court...