Civil Asset Forfeitures - A Draconian Measure

Following is an excerpt from an article I wrote on civil forfeitures. David Ross can be contacted for legal consultation at davidbross@rocketmail.com or through his website www.rossandrosslaw.com. (706) 324-4343

Civil Forfeiture:
A Fiction That Offends Due Process

“Our civil asset forfeiture laws, at their core, deny basic due process, and the American people have reason to be both offended and concerned by the abuse of individual rights which happens sometimes under these laws.”[1]

I. Introduction

It began as any other day for Billy Munnerlyn, successful operator of an air charter service located in Las Vegas, Nevada.[2] Albert Wright, a businessman, booked a flight to Ontario, California. When the airplane landed, DEA agents suddenly arrested Wright and Munnerlyn, seizing Wright’s luggage and the $2.7 million it contained.[3] The DEA also confiscated Munnerlyn’s plane, the $8,500 charter fee, and all of his business records.[4] Why? Unknown to Munnerlyn, Wright was a convicted cocaine dealer.[5] Although criminal charges were dropped against both parties, Munnerlyn spent $85,000 in legal fees to fight the government’s civil asset forfeiture action against his plane.[6] He raised the money by selling three other airplanes.[7] In the course of recovering the plane, Munnerlyn won a jury verdict in Los Angeles, only to have it reversed by a U.S. district judge.[8] Eventually, Munnerlyn was forced to settle with the government, “paying $7,000 for the return of his plane,” only to discover “that DEA agents had caused about $100,000 worth of damage to the aircraft.”[9] For Billy Munnerlyn, the American dream came crashing to a tragic end. “Unable to raise enough money to restart his air charter business, he had to declare personal bankruptcy. He is now driving a truck for a living.”[10]

II. The History Of Civil Forfeiture: An Inauspicious Beginning

The concept of forfeiture has ancient roots. Civil asset forfeiture is based upon the legal fiction of personified property.[12] Under this fiction, the property itself is viewed as guilty and subject to punishment.[13] The owner’s actual guilt or innocence is irrelevant.[14] Accordingly, cases proceed in rem against the property.[15] Several sources contributed to the development of this curious legal fiction: pre-Christian Greek and Roman law, biblical law, and early English law.[16] According to Representative Henry Hyde of Illinois, it was a routine practice in ancient Athens and the pre-Christian Roman Empire to seize the property of those opposed to the ruler.[17] Other pre-Judeo-Christian forfeiture practices flowed purely from the superstitious belief that religious expiation was required of instruments of death.[18] It follows that modern American forfeiture law precariously rests on the twin pillars of authoritarianism and animism,[19] an inauspicious beginning for a practice used today to deprive individuals of homes, businesses, cars, airplanes, and cash.

In Calero-Toledo v. Pearson Yacht Leasing Co.,[20] the Supreme Court located the origin of forfeiture in biblical practices: “[i]f an ox gore a man or a woman, and they die, he shall be stoned and his flesh shall not be eaten.”[21] This concept was broadened and changed in a unique way by early English law. Under the English medieval law of “deodand,” inanimate as well as animate objects were subjected to punishment.[22] Under deodand laws, any property causing the death of a person was subject to forfeiture.[23] While the object itself was not necessarily seized, its value was assessed and remitted to the king as a forfeiture.[24] Whereas biblical law prevented anyone from benefiting from the guilty property (“his flesh shall not be eaten”), under English law the property was forfeited to the crown.[25]

For a legal concept predicated upon religious superstition, deodand proved remarkably resilient. This practice was finally abolished in England in the mid-nineteenth century, and Lord Campbell declared that it was a “wonder that a law so extremely absurd and inconvenient should have remained in force [so long].”[26]

The deodand was never imported as a legal practice in the United States.[27] Nevertheless, the United States embraced the concept of forfeiture. “The earliest American cases justifying a civil forfeiture proceeding in rem involved actions for the forfeiture of ships . . . . The in rem posture of the admiralty forfeiture proceeding is another inheritance from English law.”[28] Under English law, owners of vessels were often located overseas and “thus not subject to the jurisdiction of English courts.”[29] Styling the action in rem enabled England to enforce its admiralty laws against the vessel.[30] Hyde states that English admiralty law is the “immediate wellspring of American civil asset forfeiture law and procedure” and notes that, like the deodand, it is “also firmly rooted in the English fiction that invests inanimate objects . . . with both life and personal responsibility.”[31] The use of civil forfeiture slowly expanded during the Civil War and the Prohibition Era.[32] Finally, the use of civil forfeiture exploded in the 1980s as civil forfeiture became a tool in the war on drugs.[33]

This brief survey of civil asset forfeiture’s history demonstrates two things. First, it explains the origins of our current legal practices. For example, the ancient philosophical view that property could be guilty and in need of expiation explains courts’ continued rejection of an owner’s innocence as a defense to forfeiture. Second, it illustrates that civil asset forfeiture, at least originally, relied heavily upon authoritarian practices and superstitious notions for its justification. This suggests that perhaps it is time to reexamine civil asset forfeiture in light of the constitutional ideals cherished by our society.

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[1] 145 Cong. Rec. H4851-01, H4852 (daily ed. June 24, 1999) (statement of Rep. Pryce), available in 1999 WL 419754.

[2] See H.R. Rep. No. 106-192 (1999), available in 1999 WL 406892.

[3] See id.

[4] See id.

[5] See id.

[6] See id. Civil forfeitures proceed against the property itself and often without regard to the guilt or innocence of its owner. See Roger Pilon, Vice President for Legal Affairs, Cato Institute, Statement Before the Criminal Justice Subcommittee of the United States Senate Judiciary Committee (July 21, 1999) (transcript available on Cato’s website at <http://www.cato.org/testimony/ct-rp072199.html>).

[7] See H.R. Rep. No. 106-192.

[8] See id.

[9] Id.

[10] Id.

[11] H.R. 1658, 106th Cong. (1999). See supra note 118 for an update on this Act.

[12] See Pilon, supra note 6.

[13] See id.

[14] See Melissa A. Rolland, Comment, Forfeiture Law, the Eighth Amendment’s Excessive Fines Clause, and United States v. Bajakajian, 74 Notre Dame L. Rev. 1371, 1372 (1999).

[15] See Pilon, supra note 6.

[16] See id.

[17] See Henry Hyde, Forfeiting Our Property Rights 17 (1995).

[18] See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681 n.17 (1974).

[19] See Pilon, supra note 6.

[20] 416 U.S. 663 (1974).

[21] Id. at 681 n.17 (quoting Exodus 21:28).

[22] See Hyde, supra note 17, at 18.

[23] See Rolland, supra note 14, at 1372.

[24] See Tamarar Piety, Comment, Scorched Earth: How the Expansion of Civil Forfeiture Doctrine Has Laid Waste to Due Process, 45 U. Miami L. Rev. 911, 928-29 (1991).

[25] See Hyde, supra note 17, at 18.

[26] Piety, supra note 24 at 931.

[27] See Scott A. Nelson, Comment, The Supreme Court Takes a Weapon from the Drug War Arsenal: New Defenses to Civil Drug Forfeiture, 26 St. Mary’s L.J. 157, 163 (1994).

[28] Piety, supra note 24, at 935.

[29] Rolland, supra note 14, at 1372-73.

[30] See id.

[31] Hyde, supra note 17, at 20.

[32] See Rolland, supra note 14, at 1373-74.

[33] See Joy Chatman, Note, Losing the Battle but Not the War: The Future Use of Civil Forfeiture by Law Enforcement Agencies After Austin v. United States, 38 St. Louis U. L.J. 739, 747 (1994).