If ever one wanted a glimpse of judicial reasoning gone awry, one
could hardly do better than turn to the three forfeiture cases decided
by the United States Supreme Court late in the 1995 Term. Two terms
ago, when the Court issued four other forfeiture rulings, it looked
like this bizarre area of law might soon be rethought from the ground
up. For the moment, however, those hopes have been dashed by no
less than the chief justice himself, the author of the latest opinions.
Under forfeiture, law enforcement officials can seize "guilty
property" almost at will. Originating in the Old Testament
and the medieval doctrine of "deodands"--in the idea that
animals and even inanimate objects involved in wrongdoing could
be sacrificed in atonement or forfeited to the Crown--modern forfeiture
law earned its credentials through early American admiralty and
customs law, enduring and expanding thereafter with little restraint.
It has always been used against "morals" crimes, but not
there alone. Today, as during Prohibition, it has come into its
own in the endless War on Drugs. Police and prosecutors love forfeiture
as a "tool of the trade" and a source of vast revenues
that directly enrich their coffers. Victims of all kinds, especially
innocent victims, are left reeling in the wake.
The very names of the relatively few cases that make it to court
tell the story: United States v. $405,089.23 in United States Currency;
United States v. 92 Buena Vista Avenue; United States v. One Mercedes
560 SEL. Civil forfeiture actions are brought against the property,
not against the individual. They are in rem proceedings--not for
the purpose of gaining jurisdiction over a real person but for the
purpose of seizing property for forfeiture to the government. Fantastic
as it may sound, it is the property that is charged.
Under this law, officials can seize a person's property, real or
chattel, without notice or hearing, upon an ex parte showing of
mere probable cause to believe that the property has somehow been
"involved" in a crime. Neither the owner nor anyone else
need be charged with a crime because the action is against "the
thing." The showing could allege that the property is contraband,
that it represents the proceeds of crime (even if in the hands of
someone not suspected of criminal activity), or that it was somehow
"used" in crime. And probable cause may be based on nothing
more than hearsay, innuendo, or even the paid, self-serving testimony
of a party with interests adverse to those of the property owner.
Once the property is seized, the burden is upon the owner, where
permitted, to prove his innocence--not by a probable-cause but by
a preponderance-of-the-evidence standard. In defending his innocence,
the owner must prove a negative, of course. Moreover, he will be
up against the overwhelming resources of the government. And if
he has been involved in any activity that might lead to criminal
charges, however trivial or baseless those charges may ultimately
prove to be, he has to weigh the value of the property against the
risk of self-incrimination entailed by any effort to get it back.
As a practical matter, the burden is often too high for many innocent
owners, who end up walking away from their losses.
Sex in a Car
In the first of the Court's latest cases, Bennis v. Michigan, Mrs.
Tina Bennis found herself on the wrong end of a Michigan law when
Detroit police charged her husband with engaging a prostitute in
the family car. After convicting him of gross indecency, the state
brought an action to have the car forfeited as a public nuisance
due to its "use" in the crime. A victim of her husband,
Mrs. Bennis was now a victim of the state, which took her half-interest
in the car. There being no innocent-owner defense available to her
under the statute, Mrs. Bennis contested the forfeiture by claiming,
among other things, that it deprived her of her property without
due process of law as protected under the Fourteenth Amendment.
In writing for the majority of five that found Mrs. Bennis's claim
without constitutional merit, Chief Justice Rehnquist sought the
aid of authority
--of "long-standing practice"--no fewer than ten times
over his brief eleven-page opinion. In fact, the opinion is little
but a sustained argument from authority, from "a long and unbroken
line of cases" that includes one in which a woman purchased
a car from a dealer who, while entrusted with the car, allowed it
to be used for the illegal transportation of liquor, resulting in
its forfeiture to the state; and another in which a leased yacht
was lost after it was used by the lessee to transport marijuana
in direct violation of the ship's lease. In a recent book, Forfeiting
Our Property Rights, published for the Cato Institute, Congressman
Henry J. Hyde catalogues a long list of far worse cases: police
who stop motorists and seize their cash on the spot; agents who
destroy boats, cars, homes, and airplanes, and even kill and maim
in the name of forfeiture. Such is the history of a body of law
that is "too firmly fixed in the punitive and remedial jurisprudence
of the country to be now displaced."
What that law says is that Mrs. Bennis is effectively out of court.
The essence of her due process claim, Rehnquist notes, "is
not that she was denied notice or an opportunity to contest the
abatement of her car; she was accorded both. Rather, she claims
she was entitled to contest the abatement by showing she did not
know her husband would use [the car] to violate Michigan's indecency
law." It is here, precisely, that "a long and unbroken
line of cases holds that an owner's interest in property may be
forfeited by reason of the use to which the property is put even
though the owner did not know that it was to be put to such use."
Thus, the process Mrs. Bennis was due was essentially pointless:
once it had been determined that the car had been so used, nothing
Mrs. Bennis could have said at any proceeding would have made a
difference; for as the Court said in 1827 in the famous case of
The Palmyra, "the thing is here primarily considered as the
Through the years, not surprisingly, the Court has struggled mightily
with that fiction. Even in Bennis, for example, Rehnquist tries
to correct a 1993 Court observation that in a 1921 case the Court
had "expressly reserved the question whether the [guilty-property]
fiction could be employed to forfeit the property of a truly innocent
owner." That observation "is quite mistaken," Rehnquist
says, for the 1921 Court expressly reserved opinion about whether
forfeiture "can be extended to property stolen from the owner
or otherwise taken from him without his privity or consent."
One may ask whether there is any real difference between those two
reservations. But regardless, the distinction Rehnquist then draws
between property that is "used without the owner's consent,"
where the question of forfeiture's application is reserved, and
property that is "used in a manner to which the owner did not
consent," where forfeiture is applied, should be utterly irrelevant.
For if the property is guilty--that is forfeiture's premise--it
matters not at all whether it was stolen or merely "entrusted."
Not even Rehnquist appears willing to follow the logic of the argument,
however. Thus, he answers Justice Stevens's suggestion, in dissent,
that this law "would justify the confiscation of an ocean liner
just because one of its passengers sinned while on board" with
a dodge: "When such application shall be made it will be time
enough to pronounce upon it." (Let the record show that hotels
and apartment buildings are today forfeited when their owners are
unable to prevent drug transactions in them.) And in a move that
only muddies the foundations of this law, Rehnquist notes that "forfeiture
also serves a deterrent purpose distinct from any punitive purpose."
Absent any knowledge of what her husband was up to, it is hard to
imagine what Mrs. Bennis might have done, under the threat of forfeiture,
to deter his assignation. That she was punished by the law, however,
is beyond any doubt.
Does Forfeiture Punish?
Or is it? We come thus to the other two cases in this term's forfeiture
trilogy, United States v. Ursery and United States v. $405,089.23
in United States Currency, which were consolidated in a single opinion
because they raised the same question: Do civil forfeitures constitute
"punishment" for purposes of the Fifth Amendment's Double
Jeopardy Clause? Notwithstanding the admission just noted from Bennis,
Rehnquist concluded, this time with all but Justice Stevens on board
for at least the judgment, that civil forfeitures do not constitute
punishment and so are not subject to the strictures of the Double
That clause prohibits the government, as the Court recently put
it, from "punishing twice, or attempting a second time to punish
criminally for the same offense." In Ursery, the Sixth Circuit
had cited double jeopardy to reverse Guy Ursery's conviction and
sixty-three-month sentence for manufacturing marijuana because Ursery
had already been punished by the forfeiture of his home following
its use in the crime. In $405,089.23, the Ninth Circuit had cited
double jeopardy to reach the converse result, reversing the forfeiture
of money and other property involved in money laundering and in
a conspiracy to aid and abet the manufacture of methamphetamines
because the owners of the property had already been punished following
their convictions for those crimes--life in prison and a ten-year
term of supervised release in one case, life in prison and a five-year
term of supervised release in the other.
In reaching their decisions, however, the two circuits had misread
three recent opinions, Rehnquist says. In United States v. Halper
(1989), the Court had held that a disproportionate civil penalty
was punishment and thus implicated the Double Jeopardy Clause. In
United States v. Austin (1993), the Court had held that civil forfeiture
under the drug statute before it "constitutes 'payment to a
sovereign as punishment for some offense' and as such, is subject
to the limitations of the Eighth Amendment's Excessive Fines Clause."
And in Department of Revenue of Montana v. Kurth Ranch (1994), the
Court had held that a marijuana tax motivated by a "penal and
prohibitory intent" makes the proceeding that imposes it on
someone already convicted of possession "the functional equivalent
of a successive criminal prosecution" in violation of the Double
But none of those cases, Rehnquist notes, involved in rem forfeitures
for double jeopardy purposes. What the circuits should have done,
he says, is follow three cases that begin with Various Items of
Personal Property v. United States (1931) and end with United States
v. One Assortment of 89 Firearms (1984). In Various Items, the Court
laid down the rule: Because forfeiture is against "the property,"
which is "held guilty and condemned as though it were conscious
instead of inanimate and insentient," it is "no part of
the punishment for the criminal offense." Thus, double jeopardy
does not apply. In 89 Firearms--where the owner of the "defendant
weapons" had already been acquitted of charges of dealing firearms
without a license--the Court found that the government's subsequent
forfeiture action did not violate the Double Jeopardy Clause because
Congress intended forfeiture to be a remedial civil sanction, because
forfeiture reached a broader range of conduct than its criminal
analogue, and because it furthered such "broad remedial aims
[as] discouraging unregulated commerce in firearms."
If this all sounds result-oriented, and not a little circular,
it is no accident. The Court says, in effect, that forfeiture is
civil and remedial, not punitive, because Congress and courts from
time immemorial have said it is. More than circular, however, the
argument is often incoherent. Thus, when the Court says that a forfeiture
may be subject to the Double Jeopardy Clause if it is "so punitive"
as to be equivalent to a criminal "proceeding" [sic]--as
if punishment of any degree, as distinct from restitution, did not
require the greater scrutiny of a criminal proceeding--we have yet
another indication of a court without a systematic theory of remedies.
Indeed, "remedial," for the Court, pertains not simply
to righting or remedying wrongs--as in making victims whole--but
to advancing public purposes like "discouraging unregulated
commerce." In the end, it comes as no small relief to discover
Justice Stevens noting, in dissent, that the Court's conclusion
that forfeiture is punishment "for purposes of" the Excesses
Fines Clause but not "for purposes of" the Double Jeopardy
Clause makes "little sense."
The beauty of discerning only distinctions and differences, of
course, is that you can find a reason for every result--or, less
charitably, a principle for every fact pattern. Unlike the search
for organizing principles, it is a method ideally suited for ad
hoc jurisprudence. But perhaps the concurrence of Justice Kennedy
best illuminates this law. Forfeiture is "not directed at those
who carry out the crimes," Kennedy says, "but at owners
[like Tina Bennis] who are culpable for the criminal misuse of the
property." (And Kennedy dissented in Bennis!) Wrong on both
counts, Kennedy then adds that forfeiture "does not depend
upon or revive the fiction that the property is punished as if it
were a sentient being capable of moral choice. It is the owner who
feels the pain and receives the stigma of the forfeiture, not the
property." Fortunately, the fiction today is gone. Only its
implications remain, to give pain to property owners--but not for
double jeopardy purposes.
*Roger Pilon directs the Cato Institute's Center for Constitutional
Studies. This article is reprinted, with permission, from Regulation,
Vol. 19, No. 3, pp. 15-19, 1996.
In response to Stefan Cassella's "Forfeiture Is Reasonable,
and It Works," which is a lengthy criticism of my essay above,
I should note first that my essay was written as a critical review
of the three forfeiture opinions the Supreme Court handed down in
its 1995 Term, not as a general critique of forfeiture law. (For
that, see my "Can American Asset Forfeiture Law Be Justified?"
49 New York Law School Law Review 311 (1994).) Nevertheless, Mr.
Cassella presents a general defense of forfeiture, using as his
foil certain points I only mention above. Thus, I appreciate this
opportunity to expand upon those points.
An "informed debate" is welcome, Mr. Cassella tells us,
but not one "muddled by the misconceptions and plain old-fashioned
misstatements that seem to pop up in every article critical of asset
forfeiture," of which mine, "containing the usual parade
of horribles, is a good example." (Sensitivity to criticism
aside, "every" article?) "Greatly mistaken,"
"preposterous," "just plain wrong"--in the interest
of injecting "a little truth and understanding into the debate,"
Mr. Cassella takes off the gloves. I am fortunate to be able to
keep mine on as Mr. Cassella's arguments, once exposed, will do
the work for me.
In a free society, government power--especially the power to seize
private property for forfeiture to the government--is not a given.
It must be justified. Yet nothing is so clear in Mr. Cassella's
essay as that he hasn't a clue about the business of justification.
Thinking like the government agent he is, his only concern is with
forfeiture's use as a "tool" in the war on crime--and
in the endless war on drugs, in particular. From beginning to end
his argument is pragmatic. Look at his title. It is as if the idea
that what he is doing (or proposing) needs to be justified in anything
more than a crude utilitarian way never crossed his mind. Indeed,
because he does not go to the root of the matter--to the theory
of forfeiture--his argument turns upon itself in the end, as we
shall see, its author oblivious to that result.
No one doubts that forfeiture is a useful tool against crime. Over
the years, the rack, the thumbscrew, and the police state too have
proven useful to that end. Usefulness aside, what disturbs so many
about forfeiture is its implications for the rights of the innocent
and the guilty alike. When forfeiture is used to confiscate the
property of innocent people, to deny due process to both the innocent
and the guilty, and to impose disproportionate sanctions on the
guilty, one wants to know what, if anything, justifies it.
As a stab at that question--a mere stab--Mr. Cassella lists six
"rationales" for forfeiture: to seize contraband, to abate
nuisances, to take the instrumentalities of crime, to take the profit
out of crime and return property to victims, deterrence, and punishment.
Presumably, the justificatory force of those reasons is something
close to "self-evident" for him, for he presents them
with little dressing.
To be sure, two of the rationales may be close to self-evident.
On the assumption that "contraband" makes sense in a free
society--and even then, not everything on Mr. Cassella's list should
be there--government forfeiture would seem to follow. Similarly,
the return, through forfeiture, of ill-gotten goods--properly defined
and with sufficient due process--presents little problem for the
rights of owners--in fact, it enhances them.
But nuisance abatement through forfeiture? Ordinarily we don't
take property for that purpose; we simply enjoin the offensive use,
leaving the property with its owner, to use in some other way. As
for "instrumentalities"--forfeiture's notorious "facilitation"
doctrine--this boundless rationale is the source today of most of
the outrage. Far from self-evident, it cries out for justification.
And it does so especially when combined with the deterrence and
punishment rationales. Those rationales have never been part of
forfeiture's justification in principle, as the Court has repeatedly
said--then denied in a logical pirouette that makes "little
sense," as Justice Stevens rightly put it.
Indeed, to recur to Bennis above, what was the point of taking
Mrs. Bennis's half-interest in her car? To deter her? From what?
To punish her? For what? The gap from the premise that a car, plane,
ranch, hotel, or ocean liner "facilitates" a crime to
the conclusion that it is, therefore, forfeitable to the government
is fairly yawning, not self-evident, and no argument from utility
will bridge it--not, that is, if we're serious about justification.
Rather than address that problem directly, however, Mr. Cassella
gleans from my essay a "parade of horribles." "We
are told," he says, (a) "that forfeiture is based on an
absurd legal 'fiction' that the property is guilty of the crime,
which means that property can be forfeited without proof that a
crime was committed by a real live person;" (b) "that
the government can seize property 'almost at will,' i.e., without
due process, and that innocent people find the process so unfair
that they walk away from their property without filing claims;"
and (c) "that even when they do file claims, innocent owners
just don't have any rights." Let's look closely to see whether
Mr. Cassella has stated my objections correctly and whether his
answers hold up.
An Absurd Legal "Fiction"?
Mr. Cassella tells us, as if we needed instruction on the point,
that "property doesn't commit crimes; people do." Just
so. But why then file an action against the property? Ignoring the
in rem history of forfeiture, Mr. Cassella would have us believe
that "the legal 'fiction' that the property is 'guilty' of
the crime is simply a shorthand for the way a civil forfeiture case
is styled." Really? You mean that all these years, through
"a long and unbroken line of cases...too firmly fixed in the
punitive and remedial jurisprudence of the country to be now displaced,"
as the Bennis Court put it, we've been wrong in believing that "the
thing is here primarily considered as the offender"?
On one point, of course, Mr. Cassella is right: the fiction is
an absurdity. But it's not a mere point of "style." It's
the law. And Mr. Cassella himself is not above resorting to that
law when it serves his purpose. Thus, he asks, "If all forfeitures
involve the commission of a crime, and the vast majority involve
an arrest or prosecution, why does the government do civil forfeiture
at all?" Why not just do criminal forfeiture by including a
forfeiture count in a criminal indictment? Why not?
The "most important" reason, he says, is because "criminal
forfeiture is limited to the property of the defendant. If the defendant
uses someone else's property to commit the crime, criminal forfeiture
accomplishes nothing [for the government]. Only civil forfeiture
will reach the property." (original emphasis) That is a striking
admission. Indeed, notice precisely what Mr. Cassella is saying
here. Proceeding "normally," against the accused--remember,
only people commit crimes -- we can't reach the property of someone
else. What a surprise! People get to keep their property unless
they've done something to lose it. That's what we call the rule
of law. Mr. Cassella, however, wants to get around that rule: "if
a drug dealer uses an airplane to smuggle drugs into California,
the government has an interest in seizing and forfeiting the plane,"
even if it belongs to someone else. Why? If A violates the law,
why take B's property? Because the property "facilitates"
the crime? We're right back where we started from --needing to justify
the facilitation doctrine.
In fact, it is here, precisely, that Mr. Cassella's argument turns
upon itself. He wants, rightly, to abandon the absurd "fiction"
that the property is guilty. But he can't, because then he would
have no reason--no justification -- for seizing property that belongs
to someone accused of no crime. Yet if he resorts to the facilitation
doctrine -- the very doctrine that needs to be justified, not assumed--then
he's right back with the legal fiction that has always been thought
to underpin the doctrine.
Mr. Cassella's argument, in short, is circular. At least the standard
rationale for the facilitation doctrine makes a stab at justification
by invoking the legal fiction that property that facilitates crime
is "guilty"--however absurd that fiction may be. Mr. Cassella's
approach abandons that fiction. But the price of doing so is to
reveal facilitation forfeiture for the naked power it always was
and still is: "A used B's plane to commit a crime; whether
or not we prosecute A, we want B's plane." Why punish B? "We're
not punishing B since the action is brought against the property,
not B." And on and on, in a vicious circle of argument that
no one any longer believes, if ever anyone did, even if the Court
continues to parrot the rhetoric.
My point in raising the absurd "fiction" in the essay
above, then, was not to defend it --far from it -- but to shine
light on the equally absurd facilitation doctrine it purports to
support. That the facilitation doctrine rests on a house of cards
in nowhere more evident than in the Court's strained efforts to
apply it, as outlined above under "Disquieting Implications."
Under the doctrine the Court has allowed the seizure of boats and
even yachts. But ocean liners? "When such application shall
be made it will be time enough to pronounce upon it," Chief
Justice Rehnquist says. So much for the rule of law.
Once the absurdity of the facilitation doctrine is exposed, those
who want to salvage it invariably turn their attention to something
the otherwise innocent owner may have done, some "guilt"
of his, even though, strictly speaking, that is irrelevant to the
doctrine--and efforts to address the question fit uneasily into
in rem proceedings. But historically, a concern for innocent owners
has come only very recently, through statute, where it has come
at all. Before turning to those spotty statutory developments, however,
we need to take up the disturbing procedural issues that Mr. Cassella
has conflated in each of his three restatements of my objections
He is right to say, of course, that property cannot be seized,
exigent circumstances aside, "without proof that a crime was
committed by a real live person." But that statement about
"proof" overstates the matter by a wide margin, as we
shall see. Moreover, as counterpoint, it misstates what I said.
I never said that under current law no proof of any kind is required
to seize property. Nor did I say that government's power to seize
property "almost at will" meant "without due process";
it was not for nothing that I used the word "almost."
Finally, Mr. Cassella has me saying that "officials can 'seize
property, real of personal, without notice or hearing'"--leaving
off the rest of the sentence, "upon an ex parte showing of
mere probable cause to believe that the property has somehow been
'involved' in a crime."
Clearly, the issue here is not whether there is any process in
a typical forfeiture action, but just how much and what kind of
process should be due. More deeply, however, it is also whether,
given the substantive law, process even matters--a point Mr. Cassella
seems not to have grasped. To read him, one would think that the
process now afforded defendants and nondefendants alike is just
about right; yet we know that at every step of the way the Department
has fought both procedural and substantive changes in forfeiture
law. Against me, for example, Mr. Cassella cites the 1993 Daniel
Good case, which requires that owners be given notice and an opportunity
to be heard before real property can be seized; what he fails to
note is that the Department argued against that result all the way
to the Supreme Court.
To put the procedural and substantive concerns together in a single
question, how could it be right--as it is today in many states and
still is under some federal statutes--to seize a person's property
through an ex parte proceeding at which the standard of proof is
mere "probable cause" about the property's "involvement"
in a crime--and afford that person no ground for subsequently reclaiming
his property? To be sure, there is a "process"--ex parte
--and it does require "proof"--at the lowest possible
level, and not necessarily about anything the owner may have done.
In a free society, however, it is hardly the process and the proof
we should think sufficient to seize a person's property.
Mr. Cassella attempts to assure us, of course, that the owner can
always contest a seizure. But that is not the case where no innocent
owner defense is available. That was the whole point above, in my
discussion of Bennis. Mr. Cassella has me making "a persuasive
argument that the Constitution does not adequately protect innocent
owners in civil forfeiture cases." I make no such argument.
In fact, in my view the Constitution does protect innocent owners
like Mrs. Bennis through a properly read Fourteenth Amendment (both
the Privileges and Immunities and the Due Process Clauses), which
would negate the facilitation doctrine. But that's not the point
here. Rather, the point is that, given the facilitation doctrine,
and the absence of an innocent owner defense, no process in the
world could have saved Mrs. Bennis: however innocent she may have
been, her property did, after all, "facilitate" the crime.
Innocent Owners and Due Process
Given the substantive law, then, the sufficiency of any process
that may be available is not the issue if no innocent owner defense
is available: for whatever the process, there's nothing for owners
to prove through it; we're back to the fiction; the property is
guilty. But even when an innocent owner defense is available, both
the substantive and the procedural law make it an uphill battle
for owners to reclaim their property once the government has seized
There are two reasons for this. First, the standard innocent owner
defense places the burden of proof on the owner, not on the government,
and the standard is high: the owner must prove, not by a probable
cause standard but by a preponderance of the evidence, that he neither
consented to the use to which his property was put nor knew about
its use. Mr. Cassella makes light of this burden of proving a negative.
Yet in response to my claim that "hotels and apartment buildings
are today forfeited when their owners are unable to prevent drug
transactions in them ," which he says "is just plain wrong,"
the first case he cites is one in which the owner was unable to
carry out his burden. (See also Seth Faison, "In Largest Takeover
Under Narcotics Law, U.S. Seizes a Large New York City Hotel,"
New York Times, June 9, 1994, at A1, B3.)
But in all of this Mr. Cassella has utterly ignored the practical
implications of this set up, which brings us to the second reason
owners face an uphill battle getting their property back, even when
an innocent owner defense is available. Let's be realistic: it's
no small matter to go up against a government--federal, state, or
local--that has just seized your property, especially if the seizure
leaves you penniless, as it sometimes does, and especially if the
cost of recovery might exceed the value of the property, as if often
does. Is it any wonder that innocent owners often walk away from
their losses? Mr. Cassella is simply oblivious to this point.
But there are still other practical impediments for innocent owners,
the full measure of which Mr. Cassella himself brings out, without
noticing it, in his discussion of the three types of forfeiture--administrative,
civil, and criminal. If the owner does not challenge the seizure,
Mr. Cassella tells us, his property forfeits to the government in
an administrative, "default" proceeding. But if the owner
does challenge the seizure, the government can get rough by filing
a civil complaint against the property or, even worse, by including
a forfeiture count in a criminal indictment. Think about it. "Complain
about our seizure of your property and we'll file a civil complaint
against it, putting you to the burden of proving your innocence;
or perhaps we'll file a criminal indictment against you--however
thin the evidence--or both. Why don't you go easy on yourself and
just walk away?" Doesn't happen--federal, state, or local?
Lord Acton spoke to that matter. So much power in the hands of government,
especially where departments literally keep the property, has got
to corrupt. As Chairman Henry Hyde's book shows, again and again,
In sum, Mr. Cassella paints a seemingly reasonable picture of a
useful "tool" in the war on crime. Closer examination,
however, shows forfeiture to be fraught with peril. Originating
in this country with the practical problem of reaching distant owners
in the customs context, its roots are far more remote than that.
It has grown over the years--especially during the era of alcohol
prohibition and, today, in the era of drug prohibition--into a weapon
not simply against crime but against the rule of law itself. Yet
a good part of what we do today through forfeiture can be done through
more legitimate, more justifiable means. In the end, forfeiture
does not need to be reformed. It needs to be relegated to the dustbin
of history from which it came and replaced by sound principles of
law. Government needs tools, to be sure, but in a free society they
must be legitimate.