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Simply stated, forfeiture is the legal process by which the
ownership of property -- houses, cars, airplanes, cash, bank
accounts, etc. -- is non-consensually transferred from its owner
to the government. The rationale for the transfer is that the
property -- not the owner -- has done something wrong. Once
the property is guilty of a crime, then the government is authorized
to forfeit it. The conceptual
underpinnings of civil forfeiture can be traced back to ancient
Roman and medieval English law, both of which made objects
used to violate the law subject to forfeiture to the sovereign.
See United States v. 785 St. Nicholas Ave., 983 F.2d 396,
401-02 (2d Cir. 1992). United States laws providing for official
seizure of property used in criminal activity perpetuate the
legal fiction that "property used in violation of law
was itself the wrongdoer that must be held to account for
the harms it had caused." United States v. 92 Buena Vista
Avenue, 113 S. Ct. 1126, 1135 (1993). Because the property,
or res, is considered the wrongdoer, it is regarded as the
actual party to in rem forfeiture proceedings. Id.
Civil forfeiture has recently gained new
life as an instrument of federal law enforcement, particularly
as a weapon in the "war on drugs". As part of the
Comprehensive Drug Abuse Prevention and Control Act of 1970,
congress strengthened civil forfeiture as a means of confiscating
illegal substances and the means by which they are manufactured
and distributed. Pub. L. No. 91-513, 84 Stat. 1276 (1970),
codified at 21 U.S.C. ss. 881-896. In 1978 congress amended
the act to authorize the seizure and forfeiture of the proceeds
of illegal drug transactions as well. The statute provides
for the forfeiture of "all moneys, negotiable instruments,
securities, or other things of value furnished or intended
to be furnished by any person in exchange for a controlled
substance [as well as] all proceeds traceable to such an exchange."
Pub. L. No. 95-633, 92 Stat. 3777 (1978), codified at 21 U.S.C.
@ 881(a)(6).
Now "one of the most potent
weapons in the judicial armamentarium", see United States
v. 384-390 West Broadway, 964 F.2d 1244, 1248 (1st Cir. 1992),
civil forfeiture has become a favored method for imposing
significant economic sanctions against narcotics traffickers.
However, the ease with which the government can seize property
and the potential hardships caused to innocent owners who
seek to recover their property once the government has seized
it have elicited concern from courts and commentators alike
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