Hoisted by their own petard: adverse inferences in civil forfeiture.

• Author: Noya, Shannon T.

1. INTRODUCTION

   Civil forfeiture laws(2) are an important weapon in the government's arsenal against drugs.(3) By attacking the economic base of drug traffickers through civil forfeiture proceedings and seizing "drug financed" property, the government hopes to cripple drug trafficking in the United States.(4) The government's war on drugs is bolstered by civil forfeiture proceeds which are used to finance the government's law enforcement efforts.(5) In a discussion about seized proceeds, former Attorney General Richard Thornburgh stated: "It's satisfying to think that it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation."(6) While this concept may appeal to our sense of justice, it may compromise constitutional principles.

   Since forfeiture proceedings are civil actions, many of the constitutional protections of criminal proceedings do not apply. For example, claimants do not have the full Fifth Amendment "right to silence." If a claimant chooses to "take the Fifth" in civil proceedings, a court may draw an adverse inference from her silence.(7)

   This Comment will evaluate the constitutional implications of drawing such negative inferences from a claimant's decision to invoke her Fifth Amendment privilege in forfeiture actions under the Drug Abuse and Prevention Act.(8) First, this Comment will explore the historical background of forfeiture and discuss the Fifth Amendment and any implications that the amendment's historical development might have on its use in forfeiture proceedings. Then, this Comment will analyze the Supreme Court's holdings with regard to the use of the Fifth Amendment in forfeiture actions and will analyze its more recent holdings that arguably broaden the constitutional protections for claimants in forfeiture proceedings. A discussion of the constitutional implications of drawing a negative inference from a claimant's silence will conclude this Comment.

2. A CIVIL CLAIMANT's CONSTITUTIONAL RIGHTS

   Civil claimants do not always receive the same constitutional rights awarded criminal defendants.(9) This is problematic in civil forfeiture proceedings because often the government simultaneously institutes both criminal and civil actions against a suspected drug trafficker(10) and evidence in a civil action may be used in a criminal action.(11) Basically, the civil claimant unwillingly may provide the government with the information that may convict her.(12)

   One reason forfeiture proceedings operate in the civil arena is because of the "guilty property" fiction.(13) In civil forfeiture actions, the property is the defendant, not its owner.(14) Property has no constitutional rights; therefore, owners have not always received full constitutional protection, such as the Fifth Amendment right to due process, the Sixth Amendment right to a speedy trial, or the Eighth Amendment right against excessive punishment.(15) Since the owner's guilt or innocence is not at issue, sometimes a guiltless owner will lose her property.(16)

   The government has attempted to address this problem by including "innocent owner" provisions in some forfeiture statutes.(17) These provisions require the owner to prove that she did not consent nor did she know that her property was going to be used in association with any drug transactions.(18) This burden is often hard to meet; consequently, it does not protect many owners. For example, the innocent owner provision has not applied to parents who let their child borrow their car, knowing that their child had used drugs in the past or had associated with people who use drugs.(19)

   Although the Supreme Court recently reexamined civil forfeiture laws and ensured claimants their Fifth Amendment Due Process rights and the protection of the Eighth Amendment's Excessive Fines Clause,(20) important constitutional rights still remain undefined in the civil forfeiture context.(21) An individual's Fifth Amendment right not to incriminate herself lingers in this nebulous arena.(22) Can one infer "guilt" when a claimant exercises her Fifth Amendment privilege not to incriminate herself in a civil forfeiture proceeding?

   In Baxter v. Palmigiano(23) a prison disciplinary board was permitted to infer guilt from a prisoner's silence in the face of charges against him.(24) The Supreme Court held that in prison administrative disciplinary proceedings "an adverse inference in a quasi-criminal action from assertion of the Fifth Amendment privilege does not impermissible burden a claimant's constitutional rights."(25) The circuit courts have disagreed in their interpretations of the Baxter holding as applied to proceedings under the Drug Abuse and Prevention Act.(26)

3. Forfeiture

   1. HISTORICAL BACKGROUND

      Historically, statutory in rem forfeiture has been considered a form of punishment.(27) However, commentators have disagreed about its origins and the purpose of the "sanctions" it imposes. In The Common Law, Oliver Wendall Holmes argues that contemporary forfeiture statutes arose primarily as a legal justification for the "deodand,"(28) an object that caused the death of another(29) and was forfeited to the Crown.(30) The deodand was tainted by the death it had caused,(31) so with its value, the Crown purportedly paid the church to say masses for the dead person's soul.(32) Holmes argues that the deodand was a substitute for revenge.(33) Since the owner of the object did not suffer any liability other than forfeiture of her property, all guilt for the act was held by the object, not the perpetrator.(34)

      In contrast, Blackstone believed that the deodand had deeper significance than a family's need for revenge. He argued that ultimately the only valid foundation for forfeiture lies in the substance of the contract that individuals make when forming a community.(35) If an individual transgresses the law of a society, she breaks the social contract.(36) Consequently, she forfeits to the state any rights or privileges derived from that social contract.(37)

      Recent commentators, agreeing in part with Blackstone, contend that early English forfeitures were imposed on individuals for the benefit of the community; an owner's guilt or innocence was moot(38) because the good of the community transcended the needs of the individual.(39) Therefore, forfeiture was not about liability, but evolved as a means to compensate the King and society for the loss of one of its components.(40) Whatever one's views of its derivations, deodands were a valuable source of revenue for the Crown and continued in England until the mid-nineteenth century when they were abolished by statute.(41)

      Modern forfeiture acts originated during England's seventeenth century maritime expansion.(42) Forfeiture proceedings arose in admiralty as a response to the needs of the merchant class.(43) Through forfeiture, the government could proceed in an in rem action against the property.(44)

      Although deodands never became part of the common law in America, (45) forfeiture laws did cross the Atlantic. Forfeiture for stolen goods or goods in violation of the revenue laws was authorized first by English statutes and then, after the establishment of the United States government, by American revenue acts.(46) During the...