The development of asset forfeiture law in the United States

• Jurisdiction: South Africa
• Author: Stefan D Cassella
• Citation: 2003 Acta Juridica 314
• Date: 30 August 2019
• Pages: 314-359
• Published date: 30 August 2019

The development of asset forfeiture law in

the United States

STEFAN D CASSELLA*

I INTRODUCTION

Asset forfeiture came into prominence as a law enforcement tool in the

United States during the 1990s. At the beginning of that decade, the

Department of Justice – the principal federal law enforcement agency –

was forfeiting approximately $200 million per year in criminal assets,

mostly from drug cases. By the end of the decade, it was forfeiting over

$600 million per year in assets involved in an enormous variety of serious

crimes.

1

In short, in the last decade, asset forfeiture became institutionalized as

an essential weapon in the arsenal that the federal law enforcement

agencies in the United States could bring to bear on the perpetrators of

crime. But the statutes, procedures and policies that govern the applica-

tion of the forfeiture laws did not spring full-grown from a single Act of

Congress. Nor were the various statutes that were enacted piecemeal

over many years accepted by the courts without scepticism or contro-

versy. To the contrary, laws and concepts that were slowly developed

throughout the nineteenth and twentieth centuries were greatly

expanded in the last 20 years, applied in new contexts, and subjected to

close scrutiny by a sceptical judiciary. Only now, after more than a dozen

constitutional challenges in the Supreme Court of the United States and

the enactment of comprehensive reform legislation, can it be said that

most of the major issues have been settled. Many issues remain, but to a

large extent when the practitioners of forfeiture law go to federal court

today, they are litigating over the details.

Though the history may be different, the concepts and issues over

which the courts in the United States have wrestled will seem familiar to a

foreign audience, for they are the same concepts and the same issues that

courts in other countries, which have adopted civil and criminal

forfeiture laws more recently, are wrestling with today. What is the

‘instrumentality’ of an offence? Why is a civil forfeiture case brought

*BS (Cornell) JD (Georgetown), Deputy Chief of Asset Forfeiture and Money Laundering

Section of the United States Department of Justice in Washington,DC. The views expressed in

this chapter, however, are solely those of the author and do not necessarily ref‌lect the views or

policies of the Department of Justice or any of its agencies.

1

Statistics provided by the Asset Forfeiture Management Staff of the United States

Department of Justice. As a result of amendments made by the Civil Asset Forfeiture Reform

Act of 2000 (CAFRA) Pub L 106–85, 114 Stat 202, the United States now has criminal and

civil forfeiture authority for well over 250 federal, state and foreign crimes.

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2003 Acta Juridica 314

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against the property itself and not against the owner? Does civil forfeiture

constitute double jeopardy? Do third parties have a constitutional right to

the protection of their interests? Does a property owner have a right to

prior notice before his property is seized? Can one use forfeitable

property to secure the right to counsel? Does the protection against

unreasonable searches apply in civil forfeiture cases? Is there a constitu-

tional duty on the courts to ensure that forfeitures are proportional to the

underlying crime?

Most of these issues were resolved, to one extent or another, in cases

decided by the Supreme Court in the past decade. The result is that we

now have a coherent body of law describing how civil and criminal

forfeitures are supposed to work in the United States, and how they are

limited by the constitutional protections embodied in the Bill of Rights.

The purpose of this chapter is to trace the evolution of the asset

forfeiture laws in the United States to see how concepts at f‌irst perceived

as foreign or even antithetical to well-settled norms of legal practice came

to be accepted as integral to the fabric of federal criminal law.

(1) The f‌irst forfeiture statutes: What does it mean to f‌ile an action in rem?

Asset forfeiture has an ancient tradition in the United States, dating

back to the English common law.

2

The First Congress, in 1789, enacted

statutes authorizing the seizure and forfeiture of ships and cargos involved

in customs offences, and later statutes authorized the forfeiture of ships

engaged in piracy and slave traff‌icking.

3

Typical was the Act of 3 March

1819, which authorized the forfeiture of any vessel from which any

‘piratical aggression’was attempted or perpetrated.

4

All of these early statutes allowed the government to forfeit the

property by f‌iling a civil lawsuit against the property itself, rather than by

f‌iling an action, civil or criminal, against the property owner. In other

words, the government could proceed against the property without

having to wait until the owner was identif‌ied, apprehended and

2

Calero-Toledo v Pearson Yacht Leasing Co 416 US 663 (1974) 680–3 and Austin v United

States 509 US 602 (1993) 611–3 which trace the asset forfeitures laws back to the enforcement

of English statutes and common law by the colonies before the adoption of the United States

Constitution, and tracing the common-law concept of forfeiture, in turn, back to Biblical

times.

3

United StatesvAParcelof Land, Bldgs, Appurtenances and Improvements, known as 92 Buena

Vista Ave, Rumson NJ 507 US 111 (1993) 119–20 which cites the early statutes, Calero-Toledo

(n 2) 683, United States v Bajakajian 424 US 321 (1998) 340–1 and 345–6 (Kennedy, J

dissenting), Austin (n 2) 613–4, United States v Ursery 518 US 267 (1996) 274.

4

The Palmyra 25 US (12 Wheat) 1 (1827) 8.

315THE DEVELOPMENT OF ASSET FORFEITURE LAW IN THE UNITED STATES

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convicted.

5

The notion was that the property itself was the offender, and

thus could be named as the defendant in rem in a civil case.

6

This was a matter of convenience and necessity. Frequently, in cases

involving smuggling, piracy and slave traff‌icking, the ship or its cargo

might be found within the jurisdiction of the United States, but the

property owner either remained abroad or could not be found at all.

7

Thus, only by styling the action as a proceeding in rem against the

property could the government hope to prevent the property from being

used again to commit another offence, or in the case of a customs offence,

only by bringing an in rem action could the government hope to recover

the duties that were owed on the imported goods.

8

Styling the case as an action against the property, however, meant that

the role of the owner in the commission of the offence was irrelevant.

Not only was it unnecessary to convict the owner of the underlying crime

before a court could assert jurisdiction over the property, but because the

property itself was the offender, it was unnecessary to show that the owner

had any role in the offence at all.

9

For example, in The Malek Adhel,

10

a

pirate case involving the Act of 3 March 1819, the Supreme Court said,

‘[t]he vessel which commits the aggression is treated as the offender, as the

guilty instrument or thing to which the forfeiture attaches, without any

reference whatsoever to the character or conduct of the owner’.

11

It was

enough to show that someone had committed the crime and used the

defendant property to commit it.

5

The in rem nature of civil forfeiture actions in the United States is generally ref‌lected in the

case caption: hence, 92 Buena VistaAve (n 3), wherein the land itself is the defendant in rem, and

the owner is not a party to the action at all unless he chooses to contest the forfeiture by f‌iling a

claim.

6

See The Palmyra (n 4) 14 (‘The thing is here primarily considered as the offender,or rather

the offense is attached primarily to the thing.... [thus], the proceeding in rem stands

independent of, and wholly unaffected by any criminal proceeding in personam’.) See also

Calero-Toledo (n 2) 684, Bennis v Michigan 416 US 442 (1996) 447.

7

Austin (n 2) 615 fn9 ‘The f‌ictions of in rem forfeiture were developed primarily to expand

the reach of the courts, which, particularly in admiralty proceedings, might have lacked in

personam jurisdiction over the owner of the property.’Bennis (n 6) at 472, Kennedy J

dissenting. In rem forfeiture evolved ‘from the necessity of f‌inding some source of compensa-

tion for injuries done by a vessel whose responsible owners were often half a word away and

beyond the practical reach of the law and its processes’.

8

Bennis (n 6) 461 fn5 (Stevens J dissenting), The Malek Adhel 43 US 210 (1844) 238

(treating the property as the offender, without regard to the owner’s conduct, seen ‘as the only

adequate means of suppressing the offence or wrong’). See also Bajakajian (n 3) 340 and 344

fn17 (noting that in rem forfeiture of smuggled goods served to ‘vindicate the government’s

underlying property right in customs duties’), United States v 1,960 Bags of Coffee 12 US (8

Cranch) 398 (1814) 405 (forfeiting cargo transferred in violation of the Non-Intercourse Act of

1809), cited in Calero-Toledo (n 2) 684 fn24.

9

See The Palmyra (n 4).

10

The Malek Adhel (n 8).

11

Quoted in Bennis (n 6) 461 fn5 (Stevens J dissenting), see also United States v United States

Coin and Currency 401 US 715 (1971) 719–20 (discussing the early cases), The Ann 12 US (9

Cranch) (1815) 289.

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