Stefan D. Cassella*
The Justice Department has drafted and sent to Congress a set of
legislative proposals to revise and reform the civil and criminal
forfeiture laws. The bill, H.R. 1745, which was introduced by Rep.
Charles Schumer on May 22, 1997, would create a uniform innocent
owner defense and otherwise change civil forfeiture procedures to
enhance the procedural due process rights of property owners. At
the same time, it would expand the government's substantive forfeiture
powers, by making the proceeds of virtually all federal crimes subject
to forfeiture; and it would give the government new procedural tools,
such as the ability to use criminal forfeiture in all cases where
civil forfeiture is already authorized.
I want to summarize the major provisions of the bill -- particularly
the procedural due process provisions -- in some detail. But first
I must respond briefly to Roger Pilon's comment in the Spring 1997
issue of this newsletter that forfeiture "reform" presupposes
that forfeiture is justified in the first place -- a notion that
Mr. Pilon cannot accept.
In the Spring issue, Mr. Pilon and I wrote side-by-side articles
giving sharply contrasting views of the forfeiture laws. In the
Addendum to his article, Mr. Pilon takes me to task for focusing
my attention on the due process protections embedded in our current
forfeiture procedures without answering, to Mr. Pilon's satisfaction,
what he calls the fundamental question: What justification is there
for forfeiting someone's property in the first place? No amount
of due process, he says, can legitimize the taking of property from
a person who is not himself guilty of any criminal offense. I have
assumed, he says, that the rationale for such forfeitures is "self-evident."
Perhaps I must plead guilty. When someone walks into a 7-Eleven
convenience store with a shotgun and blows away the clerk, the police
seize the gun. Why? Because it has been used to kill someone and
could be used to kill someone else if not taken into police custody.
Do I think this rationale self-evident? I guess so. But what if
the gun didn't belong to the robber but belonged to someone else?
Sorry, I don't see how that changes anything. When the robber is
standing there with the smoking gun, we don't expect the police
to say, "Excuse me, is this gun yours? Could it perhaps belong
to your brother?" No, we seize the gun and forfeit it as the
instrumentality of a crime, whether it belonged to the gunman, his
brother, or his Aunt Louise from Nebraska.
The public is entitled to be protected from criminals -- which
means not only that criminals should be locked up, but that the
instrumentalities of their crimes should be confiscated so that
they cannot be used -- by them or by others -- to commit additional
crimes against additional victims. And if the forfeiture of the
property deters others from committing similar crimes, so much the
The same rationale applies to the drug dealer's airplane, the alien
smuggler's cargo vessel, the counterfeiter's printing press, or
the tools of the terrorist. In each case, the property is forfeited,
not because the property is itself the "offender," but
because it has been used to tear a hole in the social fabric and
could be used again to jeopardize the security and well-being of
the citizens whose rights government was created to protect.
But Mr. Pilon is dissatisfied by such "crude utilitarian"
arguments. He asks, in essence, Why should A lose his gun just because
B used it to kill someone? Why should A lose his airplane just because
B used it to fly half a ton of cocaine into the United States from
Colombia? Why should a slumlord lose his building just because his
tenants used it to sell drugs to children on their way to school?
That the public is thereby protected from future criminal activity
is apparently not enough of a justification for forfeiture. Evidently,
when a pilot is arrested after transporting a load of cocaine, Mr.
Pilon would have us return the plane to the drug dealer so that
he can hire a new pilot to fly load after load of drugs into Texas
or California until we extradite the dealer himself and bring him
The nub of Mr. Pilon's argument is that if the owner of the property
hasn't been convicted of a crime -- or hasn't even committed a crime
-- he hasn't done anything wrong, and therefore should not suffer
the loss of his property, regardless of how it was used or might
be used by someone else to commit a criminal offense. There are,
of course, cases where a wholly innocent person's property was used
to commit an offense that the owner knew nothing about or was powerless
to stop. That's where the statutory innocent owner defense comes
in, as will be discussed in a moment. But it is absolutely wrong
to say that a property owner "has done nothing wrong"
if he knowingly allows someone else to use his property to commit
If I let the local organized crime family use my building to run
a gambling or prostitution operation, I may have committed no crime
myself, but I've certainly made it easier for someone else to commit
one. The same is true if I let my boat and dock be used to smuggle
drugs, or if I allow by car dealership to be used to launder money.
There are degrees of offenses against society. Some -- the most
serious -- are punished as crimes. Others are punished less severely
-- through civil fines and forfeitures, debarments and revocation
of licenses and privileges. Allowing another to use your property
to violate the law and prey on innocent people falls in the latter
category. It is not a crime, but it is a wrong that merits the sanction
of forfeiture, not only to prevent the property from being used
again for an illegal purpose, but to encourage property owners generally
to take greater care that their property is not turned into an instrument
of social destruction.
That civil forfeiture serves this collateral purpose was recognized
by the Supreme Court when it was asked, "How is it possible
that a civil forfeiture could constitute punishment for purposes
of the Eighth Amendment's Excessive Fines Clause, but not constitute
punishment for purposes of the Fifth Amendment's Double Jeopardy
Clause?" In his concurring opinion in United States v. Ursery,
116 S. Ct. 2135 (1996), Justice Anthony Kennedy explained that the
Double Jeopardy Clause protects against the imposition of two punishments
for committing the same crime. But civil forfeiture doesn't punish
a property owner for committing a crime; to the extent that it constitutes
punishment at all and isn't simply a remedial device, it imposes
a sanction on a property owner for using, or allowing another to
use, his property to commit a criminal offense. That sanction does
not fall within the ambit of the Double Jeopardy Clause, which is
concerned only with the punishment imposed for the commission of
a crime; but it is circumscribed by the limitations of the Excessive
Fines Clause, which deal more generally with the sanctions the government
may impose for a broader range of civil and criminal transgressions.
In my view, civil forfeiture is amply justified by the dual purpose
of taking the instrumentalities of crime out of circulation and
providing a civil sanction against those who allow their property
to be used for socially destructive purposes. The key, as with all
tools of law enforcement, regardless of their justification, is
that the sanction be imposed fairly, with all attributes of due
Mr. Pilon's attack on the due process protections built into current
law is sad. One must assume that he has never had an opportunity
to handle a civil forfeiture case.
He begins by asking, "How could it be right . . . to seize
a person's property through an ex parte proceeding at which the
standard of proof is mere "probable cause" . . . and afford
that person no ground for subsequently reclaiming his property?"
(Emphasis in original.) The entire process, Mr. Pilon says, in the
absence of a statutory innocent owner defense, is ex parte, and
gives property owners no chance whatsoever to challenge the forfeiture.
Totally wrong. Yes, personal property may be seized without notice
-- i.e., ex parte -- assuming a warrant has been issued or an exception
to the Fourth Amendment warrant requirement applies; and the seizure
may be based solely on probable cause. It's the same with the arrest
of an individual. Do the police call up a wanted fugitive to let
him know in advance that they'll be coming over to arrest him? Not
usually. As long as they have a warrant based on probable cause,
they arrest the fugitive, put him in jail, and give him a hearing
later. Similarly, we generally don't call international money launderers
on the phone and say, "we're planning to seize the money you're
going to wire to the Cayman Islands; would this be a convenient
time?" Just as the fugitive would disappear if given any warning,
so would the forfeitable property.
But just as the arrested fugitive is entitled to a trial and the
other attributes of due process before the arrest can be transformed
into a conviction, so does a property owner have a right to due
process before a seizure matures into a forfeiture.
This is true whether the forfeiture statute provides for an innocent
owner defense or not. In all cases, the property owner is entitled
to a jury trial where he may attempt to establish either that no
crime occurred (i.e. that there is no basis for the forfeiture)
or that this particular property was not derived from, or used to
commit, the offense.
Once the government establishes probable cause on these issues
and a jury is empaneled, the standard of proof is preponderance
of the evidence. If the property owner introduces evidence on either
point, the government must rebut it with admissible evidence; it
cannot rely on hearsay as it can in a probable cause hearing.
It's true that the burden of proof in a civil forfeiture trial
is on the property owner. That is something that our legislative
proposal would change. But it is totally wrong to suggest that civil
forfeiture under current law is a fait accompli once the property
is seized, with the property owner having no avenue of redress.
There is a trial, by jury, with all of the rules of evidence available
to both sides, at which the owner can challenge the legal and factual
basis for the forfeiture. If there is an applicable innocent owner
defense, as there is in most federal cases, the property owner may
challenge the forfeiture on that basis as well.
Moreover, once the jury finds that the property is subject to forfeiture,
the property owner has the right to ask the court to void or mitigate
the forfeiture on the ground that it would be unconstitutionally
excessive under the Excessive Fines Clause. Again, that's true whether
the statute provides for an innocent owner defense or not.
Mr. Pilon's response is that even if there were such due process
protections, they would be meaningless because of the "practical
impediments" to litigating against the government. For example,
he says if no one files a claim to seized property, the government
will forfeit it in an administrative default proceeding; but if
a person dares to file a claim, "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."
My goodness. Exactly what are we supposed to do? Ignore the claim
and keep the property? Or does Mr. Pilon think that everyone who
challenges a forfeiture is entitled to immediate return of the property?
Is the validity of the claim to be assumed? Should we have a ceremony
and give the claimant a medal for having the fortitude to file a
I thought the whole idea was to give a property owner his "day
in court" where the merits of the forfeiture action can be
played out in front of a jury, instead of being determined by the
agency that seized the property. The only way to do that is to initiate
a formal civil forfeiture case or to pursue the forfeiture as part
of an indictment in which someone is being prosecuted for the underlying
The theme that runs throughout H.R. 1745, the Justice Department's
legislative proposal, is that the federal courts should be accessible
to anyone with standing to challenge a civil forfeiture action,
and that the rules governing such actions should be fair -- to all
parties -- and easy to understand. Let's look now at some of those
The centerpiece of the reform side of H.R. 1745 is the provision
that places the burden of proof on the government in civil forfeiture
cases. The standard of proof would remain "preponderance of
the evidence," but instead of allowing the government to shift
the burden of proof to the claimant upon a threshold showing of
probable cause, the burden would at all times remain on the government
to show that a crime occurred and that the property derived from,
or was used to commit, that crime. Thus, property owners would no
longer have cause to complain that they were being asked to "prove
Equally important is the provision enacting a "uniform innocent
owner defense" that would apply to all civil forfeiture statutes
enforced by the Department of Justice. Most federal statutes already
contain a statutory innocent owner defense, but some, like the gambling
and smuggling statutes, 18 U.S.C. §§1955(d) and 545, respectively,
do not. Enactment of the defense would ensure that a wholly innocent
owner, who established that he or she was unaware of, or took all
reasonable steps to prevent, the illegal use of his or her property
would be protected from forfeiture.
The defense would also protect bona fide purchasers who acquire
forfeitable property in exchange for something of value without
realizing that the property was derived from a criminal offense
or used to commit one. But it would not protect persons, like drug
dealers' girlfriends, who receive forfeitable property as a gift
intended to insulate the property from forfeiture. This is a loophole
in current law that has existed since the Supreme Court's decision
in United States v. A Parcel of Land (92 Buena Vista), 507 U.S.
111, 113 S. Ct. 1126 (1993). In his dissent in that case, Justice
Kennedy said that the failure to exclude donees from the application
of the innocent owner defense "rips out the most effective
enforcement provisions in all of the drug forfeiture laws,"
113 S. Ct. at 1146, and "leaves the forfeiture scheme that
is the centerpiece of the Nation's drug enforcement laws in quite
a mess." 113 S. Ct. at 1145 (Kennedy, J. dissenting). Justice
Stevens, however, writing for the plurality, said that the Court
was bound by the statutory language enacted by Congress. "That
a statutory provision contains 'puzzling' language, or seems unwise,
is not an appropriate reason for simply ignoring the text."
113 S. Ct. at 1135 n.20. The new forfeiture bill would resolve this
The bill does a number of other things to improve the access that
property owners have to the federal courts to contest civil forfeiture
actions. It extends the deadline for contesting an administrative
forfeiture from 10 to 30 days from receipt of notice; it abolishes
the "cost bond" requirement in cases involving the forfeiture
of currency or monetary instruments because such cases do not involve
any storage costs that are otherwise imposed on the government if
frivolous claims are filed; and it creates a remedy under the Federal
Tort Claims Act for owners whose property was damaged while in government
custody but never forfeited.
The bill would also allow claimants to recover pre- and post-judgment
interest if they successfully contest the forfeiture action, and
it would allow the Attorney General to use property forfeited in
civil cases to pay restitution to the victims of the underlying
While H.R. 1745 contains these and a number of other provisions
designed to enhance the procedural protections embodied in the civil
forfeiture laws, the bill is a balanced proposal that also extends
the government's forfeiture powers into new areas and provides new
tools to make the enforcement of the forfeiture laws more effective.
Most important, the bill authorizes the forfeiture of the proceeds
of virtually all crimes in the federal criminal code. There is no
reason why a criminal should ever be permitted to retain the proceeds
of a crime. Indeed, one of the primary purposes of forfeiture is
to ensure "that persons do not profit from their illegal acts."
Ursery, 116 S. Ct. at 2149.
The bill also gives the government new authority to confiscate
guns used in crimes of violence, electronic gear used in telemarketing
fraud schemes, chemicals, lab equipment and other articles used
by terrorists, and property used to facilitate foreign drug crimes.
On the procedural side, the bill would do a number of things to
address the growing tendency of criminals to ignore international
borders when they commit crimes and seek to conceal their criminal
proceeds. For example, the bill would allow courts to order criminals
to repatriate property that is subject to forfeiture from abroad
-- thus making it available for forfeiture and restitution to victims.
It would also enhance our ability to work with foreign governments
by creating a mechanism for the enforcement of foreign forfeiture
judgments, and by allowing courts to freeze the U.S. assets of a
person arrested abroad. The bill would also give the government
the means to obtain access to bank records held overseas in bank
secrecy jurisdictions, provide for the admissibility of foreign
business records in forfeiture cases, and prohibit fugitives from
litigating civil claims in federal court unless they surrender themselves
in the related criminal case.
Finally, the bill would enhance the criminal forfeiture statutes
to make them as effective as their civil counterparts. Criminal
forfeiture would be available in every case where civil forfeiture
is now authorized (it seems obvious that it should be, but it's
not). The government would be able to seek an order restraining
forfeitable property, including substitute assets, pre-trial, to
make sure the assets didn't disappear. And there would be better
procedural mechanisms for locating forfeitable assets, enforcing
forfeiture judgments, and protecting the rights of third parties
asserting an interest in forfeited property.
In all of these ways and more, H.R. 1745 would create a comprehensive
and coherent set of forfeiture laws that would protect the rights
of property owners, while preserving and enhancing asset forfeiture
as an effective law enforcement tool. We should all hope that Congress
moves quickly to consider it and enact it into law.
*Stefan D. Cassella is the Assistant Chief of the Asset Forfeiture
and Money Laundering Section of the U.S. Department of Justice.
The opinions expressed in this article are solely those of the author
and do not necessarily reflect the views or polices of the Department