"Forfeiture Takings"

The title of this post is the title of this new article authored by Shelley Ross Saxer now on SSRN. Here is its abstract:

Forfeiture laws allow law enforcement to seize property that has been used or possessed in violation of legal rules, often before an owner has a chance to contest the government’s seizure in court.  In the criminal context, forfeiture is an in personam action that requires a criminal conviction and is part of a defendant’s sentence.  In the civil context, however, forfeiture is an in rem proceeding brought against the property derived from or used to commit an offense––not against the person who committed the offense.  As such, a civil forfeiture does not require a criminal conviction or predeprivation hearing, and, under the ‘guilty property’ theory, will even apply to property whose owner may be wholly innocent of any wrongdoing.  But is an innocent-owner not entitled to ‘just compensation’ for government seizure under the Takings Clause of the Fifth Amendment?  Should property owners not be entitled to a predeprivation hearing that conforms with Due Process Clause of the Fourteenth Amendment?  And is civil forfeiture not subject to scrutiny under the Excessive Fines Clause of the Eighth Amendment?

This Article reveals that courts have generally declined to answer these questions in the affirmative, primarily by adherence to a somewhat outdated reliance on the historical justifications for early Anglo-American forfeiture laws and the traditional distinction between criminal and civil remedies.  The problem is that what started as practical way to enforce maritime law in the seventeenth-century has since evolved into a widespread use of modern forfeiture to enforce all types of laws and generate substantial revenue to support law enforcement operating budgets.  Therefore, it is time to reassess the history of forfeiture law and its applicability to modern law enforcement practices.  This Article begins with an examination of the historical background of criminal and civil forfeitures developed in England before eventually being incorporated into the United States judicial system.  It then discusses due process challenges to the seizure and forfeiture of property based on the divide between civil and criminal proceedings; explores takings challenges to civil and criminal forfeitures, impoundments, police damagings and destruction, and tax forfeitures; and examines the role that excessive fine challenges play in civil forfeitures and fines.

The Article proposes a framework for reexamining the historical foundation of modern forfeiture that has allowed government to circumvent constitutional protections and created unmanageable financial incentives for law enforcement to maximize forfeiture actions. In essence, this framework suggests that we discard the legal fiction of “guilty property” theory in favor of a rebuttable presumption that any forfeiture, whether civil or criminal, be treated as punitive and therefore subject to appropriate due process requirements and excessive fines challenges.  And if the government fails to return property to an innocent owner, retains more property than required to compensate the government, or fails to promptly return seized property in the same condition to criminal defendants whom the government fails to prosecute or whom the jury acquits, the government should be responsible for paying just compensation for a taking under the Fifth Amendment.  Finally, the Article denounces the courts’ continuing use of the nonsensical “police power” and “necessity” exceptions to the Takings Clause to dismiss takings claims against the government for civil forfeiture and police destruction of private property.