Across the country in the early 1990s stories cropped up of persons negotiating with police departments over the price for
returning their home or car. Likewise drug dealers facing multiple lifetimes of imprisonment have won the promise of more lenient
treatment by agreeing to turn over millions of dollars in drug profits to federal prosecutors. These stories sound like they must be
emerging from some far away country where the capriciousness of armed justice has yet to be smoothed out by the reliability of
rules and procedures. In fact, Leonard Levy shows, they are emerging in the United States from legal sources that date back
through the genealogy of American law to feudal England.
Under the present law, the government may undertake what is known as civil forfeiture against property allegedly used in or
derived from a crime. To do so, law enforcement need only possess probable cause of the criminal connection (the same standard
used under the 4th Amendment to issue an arrest or search warrant). Such seizures are automatically reviewed by a court if the
property is worth more than $100,000, or if the owners of the property demand a hearing and post a bond consisting of 10% of the
value of the property (to a total of $5,000) is posted. If probable cause is established the burden shifts to the owner to prove the
innocence of the property.
This favorable position for the government is predicated on the legal fiction that it is the property itself that has been charged with
crime and not the person of the owner so that the usual requirements of due process for criminal or even civil purposes may be put
aside. Even if the current owner purchased the property after the alleged illegal actions, and has had no notice of such crimes, the
government will prevail under the additional legal fiction that the property was forfeited at the moment it was used illegally.
Another option known as criminal forfeiture enables to government to seize the crime related assets of persons convicted of
crimes. This approach, however, requires the government to meet the burdens of traditional criminal proof and to identify the
forfeitable property in the indictment. Moreover, until the law was changed in 1984, the legal fiction of forfeiture at the moment of
illegality did not apply to criminal forfeiture; instead the property was forfeited only at the moment of conviction. Thus offenders
could take advantage of the notice provided by the indictment to dispose of the property since forfeiture did not begin until
conviction.
The intensive use of both types of forfeiture laws is a product of the mid-1980s. Civil forfeiture has long been an option under both
state and federal but its use began to accelerate in 1984 when the federal government introduced the policy of equitable sharing
under which local communities share proportionately in the assets seized on the condition that the money be entirely spent on law
enforcement. Under this law, cooperative local law enforcement can become the richest
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part of local government absorbing windfall profits in the form of equipment, improvements in accommodations, and (somewhat
improperly) salaries and bonuses. Indeed while many states provide for asset forfeiture to benefit education or the general
treasury, the federal provision has created an incentive for local law enforcement to evade state purposes.
The modern law of criminal forfeiture began with the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO) and the
Continuing Criminal Enterprise Act (CC). These laws provided for government seizures of assets deemed profits or interests in
criminal activities as well as harsh new prison sentences and fines. Under these laws, however, forfeitures remained difficult. In
the mid 1980s Congress revised RICO and CC to make asset seizure easier.
With newly fortified civil and criminal forfeiture laws, a whole new economic circuit of seizures has evolved which involves law
enforcement, informants, and alleged offenders. The enormous sums moving in these circuits has undoubtedly altered the priorities
and strategies of law enforcement and created a whole new generation of bounty hunters who can broker lucrative assets to law
enforcement for large cash rewards. Unsurprisingly, the targets of these actions are often ordinary people who cannot afford
aggressive legal responses and minorities who are disproportionately the target of law enforcement.
Levy traces this modern dilemma to practices dating back to the feudal period in England. Civil forfeiture has its origins in the
concept of "deodand" or gift to God . Tracing its justifications back to the Bible, the common law provided that an animal or object
involved in a wrong doing was deemed to be forfeited to the Crown of England for the good of the community. Levy suggests that
the practice may have originally served as a kind of settlement on behalf of the victim, or her survivors, but in time came to profit
the crown only. Criminal forfeiture, owes its origins to parallel practices of feudal England in which the King confiscated the
property of felons and traitors. By Blackstone's time this applied only to those executed for their crimes. Such felons were also
subject to corruption of blood by which they were prevented from inheriting or transmitting to heirs any property.
Versions of both civil and criminal forfeiture made it to the American colonies. After the revolution, most of the new states, were
unwilling however, to seek the punishment of relatives and to ignore the corruption of blood principle. The Constitution specifically
denied the government corruption of blood as a punishment for treason. Although most states rejected the English tradition of
deodands the law of admiralty soon developed forfeiture provisions that permitted the government to seize the ships and goods of
shippers violating trade and navigation acts.
Recently the Supreme Court has begun to respond to the waive of asset forfeitures by clarifying the applicability of constitutional
rights. In the last three years the Court has held that civil forfeiture is a punishment for purposes of constitutional rights against
double jeopardy and excessive punishments.
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Just this last term, however, the Court rejected the view that due process requires states to provide offsets for so called innocent
owners who were unaware of criminal activities involving their jointly owned property.
The rise of forfeiture as a tool of law enforcement is one of the most important manifestations of a new paradigm of crime control
in the United States, one in which the individual is increasingly displaced by imperatives of managerial efficiency within the
criminal justice system and the aggregate threat of crime. In a variety of substantive areas the Supreme Court has shown an
increasing willingness to endorse this new paradigm and exempt it from the traditional limitations on the criminal process (see John
Gilliom's 1994 book on drug testing for one powerful set of examples).
As in his many past books, Leonard Levy provides a solid foundation for researching the legal history of this device. Scholars on
the subject and teachers of courses which deal with the subject will find this an enormous help in understanding the legal practices
involved and their genealogy. Levy remains largely unmatched for the consistency of his focus, and the clarity with which he
presents often convoluted legal theories. His work can be used and appreciated by scholars and undergraduates alike. What is
absent is any analysis of the social, political, and economic circumstances that are driving these developments.
References:
Gilliom, John. 1994. SURVEILLANCE, PRIVACY, AND THE LAW: EMPLOYEE DRUG TESTING AND THE POLITICS
OF SOCIAL CONTROL. Ann Arbor: University of Michigan Press.
“A tour de force of lively writing and keen historical interpretation. . . . This work is both an essential casebook and an outspoken, feisty, important study of the struggle for intellectual and religious liberties.”—Publishers Weekly
“Levy has made another important contribution to legal history. This cogent, carefully researched, and well-argued study . . . places historians and the public generally in his debt.”—American Historical Review
“A valuable work on an important subject.”—Appellate Practice Journal
“Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United State Constitution, has added to his impressive oeuvre a new study of civil and criminal forfeiture. . . . The book provides a concise and entertaining summary of the historical origins of modern civil and criminal forfeiture in early English law.”—Michigan Law Review
“The best single source about the forfeiture question, from the history of the notion in English and American law, to the recent statutory develpments, and to the gross abuses by government.”—Stephen M. Krason, Journal of Catholic Legal Studies
