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epared for Members and Committees of Congress

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
ž––Š›¢ȱ
This is a sketch of the federal forfeiture, the confiscation that attends the commission of various
crimes, of its origins and attributes, of the distribution through asset forfeiture funds of the
hundreds of millions of dollars it generates, and of some of the constitutional issues it raises. It is
an abridged version of CRS Report 97-139, Crime and Forfeiture, by Charles Doyle, a longer
report from which citations, footnotes, and appendices have been stripped.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
˜—Ž—œȱ
Background ......................................................................................................................... 1
Property and Trigger Crimes............................................................................................... 1
Civil Forfeiture ................................................................................................................... 2
Criminal Forfeiture ............................................................................................................. 3
Disposition of Forfeited Assets........................................................................................... 4
Constitutional Considerations............................................................................................. 4

˜—ŠŒœȱ
Author Contact Information ............................................................................................................ 5

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
ŠŒ”›˜ž—ȱ
Present forfeiture law has its roots in early English law. It is reminiscent of three early English
procedures: deodands, forfeiture of estate or common law forfeiture, and statutory or commercial
forfeiture. At early common law, the object that caused the death of a human being—the ox that
gored, the knife that stabbed, or the cart that crushed—was confiscated as a deodand. Coroners’
inquests and grand juries, bound with the duty to determine the cause of death, were obligated to
identify the offending object and determine its value as well. The Crown distributed the proceeds
realized from the confiscation of the animal or deadly object for religious and charitable purposes
in the name of the deceased. Although deodands were not unknown in the American colonies,
they appear to have fallen into disuse or been abolished by the time of the American Revolution
or shortly thereafter. In spite of their limited use in this country, deodands and the practice of
treating the offending animal or object as the defendant have frequently been cited to illustrate the
characteristics of modern civil forfeiture. Forfeiture of estate, or common law forfeiture, unlike
deodands, focused solely on a human offender. At common law, anyone convicted and attained
for treason or a felony forfeited all his lands and personal property. Attainder, the judicial
declaration of civil death, occurred as a consequence of the pronouncement of final sentence for
treason or felony. In colonial America, common law forfeitures were rare. After the Revolution,
the Constitution restricted the use of common law forfeiture in cases of treason, and Congress
restricted its use, by statute, in the case of other crimes. The third antecedent of modern forfeiture,
statutory or commercial forfeiture, figured prominently in cases in admiralty and on the revenue
side of the Exchequer in pre-colonial England. It was used fairly extensively against smuggling
and other revenue evasion schemes in the American colonies, and has been used ever since. In
most instances, the statutes have called for in rem confiscation proceedings in which, as with
deodands, the offending object is the defendant; occasionally, they have established in personam
procedures where confiscation occurs as the result of the conviction of the owner of the property.
Although contemporary American forfeiture law owes much to the law of deodands and the law
of forfeiture of estate, it is clearly a descendant of English statutory or commercial forfeiture.
›˜™Ž›¢ȱŠ—ȱ›’Ž›ȱ›’–Žœȱ
Modern forfeiture is a creature of statute. While there are some common themes and general
patterns concerning the crimes that trigger forfeiture, the property subject to confiscation, and the
procedures associated with forfeiture, the federal forfeiture statutes are matters of legislative
choice and can vary greatly. Virtually every kind of property, real or personal, tangible or
intangible, may be subject to confiscation under the appropriate circumstances. The laws that call
for the confiscation of contraband per se, property whose very possession has been outlawed, are
the most prevalent. Property, particularly vehicles, used to facilitate the commission of a crime
and without which violation would be less likely, is also frequently subject to confiscation. In
some instances, Congress has authorized the confiscation of the direct and indirect proceeds of
illegal activities, and of substitute assets when the property normally subject to confiscation under
a particular statute has become unavailable. Traditionally, the crimes that triggered forfeiture were
those which threatened the government’s revenue interest, e.g., smuggling, tax evasion, hunting
or fishing without a license, or those crimes which because of their perceived threat to public
health or morals might historically have been considered public nuisances subject to abatement,
e.g., gambling, or dealing in obscene material or illicit drug use. Beginning with the racketeering
statutes, a number of jurisdictions have created a third category, adding some of the kinds of
crimes which involve substantial economic gain for the defendant even if not at the expense of
government revenues, but which may greatly enhance government revenues, e.g., racketeering
and money laundering. The trend is most obvious in the Civil Asset Forfeiture Reform Act
˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ
ŗȱ

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
(CAFRA), which made forfeitable the proceeds from any of the crimes upon which a money
laundering or RICO prosecution might be based. Following the terrorist attacks on September 11,
2001, Congress authorized the confiscation of another type of crime-related property – property
owned by certain terrorists regardless of whether property is traceable, used to facilitate, or
connected in any other way to any practical crime.
’Ÿ’•ȱ˜›Ž’ž›Žȱ
Forfeiture follows one of three procedural routes. Although crime triggers all forfeitures, they are
classified as civil forfeitures or criminal forfeitures according to the nature of the judicial
procedure which ends in confiscation or administrative forfeitures if confiscation occurs without
judicial proceedings. Civil forfeiture is ordinarily the product of a civil, in rem proceeding in
which the property is treated as the offender. Within the confines of due process and the language
of the applicable statutes, the guilt or innocence of the property owner is irrelevant; it is enough
that the property was involved in a violation to which forfeiture attaches in the manner in which
statute demands. Criminal forfeiture proceedings, on the other hand, are in personam proceedings,
and confiscation is only possible upon the conviction of the owner of the property and only to the
extent of defendant’s interest in the property.
As a general rule, since the proceedings are in rem, actual or constructive possession of the
property by the court is a necessary first step in any civil confiscation proceeding. Because realty
cannot ordinarily be seized until after the property owner has been given an opportunity for a
hearing, the procedure differs slightly in the case of real property. Where the seizure of the
property causes an undue hardship, CAFRA affords an owner the opportunity to petition the court
for release of the property pending the completion of forfeiture proceedings; and it affords the
government the opportunity to petition for a restraining or protective order to preserve the
property pending the completion of forfeiture proceedings.
In the interests of expediency and judicial economy, Congress has sometimes authorized the use
of administrative forfeiture as the first step after seizure in uncontested cases. The procedure
requires that those with an interest in the property be notified and given an opportunity to request
judicial forfeiture proceedings. When administrative forfeiture is unavailable, or when a claimant
has successfully sought judicial proceedings, or when the government has elected not to proceed
administratively, the government may seek to secure a declaration of forfeiture by filing either a
complaint or a libel against the property.
In money laundering and other civil forfeitures governed by the CAFRA, the government must
establish that the property is subject to confiscation by a preponderance of the evidence. In cases
such as those arising under the customs laws and cases filed before the effective date of the
CAFRA amendments, the government must establish probable cause to believe that the property
is subject to forfeiture; if the government overcomes this initial obstacle, the burden shifts to the
claimant who must establish standing and, by a preponderance of the evidence, that his or her
interest in the property is not subject to a declaration of forfeiture. A claimant may successfully
challenge confiscation on several grounds. He or she may be able to show that the predicate
criminal offense did not occur or that his or her property lacks the statutorily required nexus to
the crime. A claimant’s innocence or even acquittal only bars civil forfeiture to the extent that a
statute permits or due process requires. For most civil forfeitures, other than those arising under
the tax or customs laws, CAFRA established two “innocent owner” defenses—one for claimants
with an interest in the property at the time the forfeiture-triggering offense occurred and the other
for claimants with an interest acquired after the forfeiture-triggering offense occurred. The first is
˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ
Řȱ

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
available to claimants either who were unaware that their property was being criminally used or
who did all that could be reasonably expected of them to prevent criminal use of their property.
The second is for good faith purchasers who did not know of the taint on the property at the time
they acquired their interest.
Where the court determines that the property is not subject to forfeiture, it must be released to its
owner, assuming the property can be lawfully possessed by its owner. Regardless of the statutory
procedure initially invoked, prevailing claimants may be entitled to compensation for damages to
the property incurred while in federal custody, attorneys’ fees, post-judgment interest, and in
some instances pre-judgment interest. Where the property is declared forfeited, its disposal is a
matter of statute.
The Attorney General and the Secretary of the Treasury enjoy wide latitude to transfer confiscated
property to state, local, and foreign law enforcement agencies to the extent of their participation
of in the case, although both must be assured that the transfers will encourage law enforcement
cooperation. At one time, this “equitable sharing” transfer authority could not be used unless the
Attorney General was convinced that confiscated property “[was] not so transferred to circumvent
any requirement of State law that prohibits forfeiture or limits use or disposition of property
forfeited to State or local agencies.” The restriction addressed sometimes controversial adoptive
forfeitures. Adoptive forfeiture occurs when property is forfeitable under federal law and the
Department of Justice “adopts,” for processing under federal law, a forfeiture case brought to it
by state or local law enforcement officials and in which the United States is not otherwise
involved. Federal adoption is sometimes attractive because of the speed afforded by federal
administrative forfeiture. It may also be attractive because forfeiture would be impossible or more
difficult under state law or because law enforcement agencies would not share as extensively in
the bounty of a successful forfeiture under state law. The circumvention restriction is no longer in
effect, but the Treasury and Justice Departments insist that state and local law enforcement
agencies indicate the law enforcement purposes to which the transferred property is to be devoted
and that the transfer will increase and not supplant law enforcement resources.
›’–’—Š•ȱ˜›Ž’ž›Žȱ
Once less frequently invoked than civil forfeiture, criminal forfeiture appears to have become the
procedure of choice when judicial proceedings are required. This is particular true, since there
now exists a bridge statute, 28 U.S.C. 2461(c), which permits confiscation using its criminal
forfeiture procedure as an alternative whenever a civil forfeiture is authorized. Criminal forfeiture
is a consequence of conviction. The indictment or information upon which the conviction is based
must list the property which the government asserts is subject to confiscation, and the defendant
is entitled to a jury finding of the necessary connection between the crime of conviction and the
property to be confiscated. Since the court’s jurisdiction does not depend upon initial control of
the res, it need not be seized before forfeiture is declared. The court, however, in some instances
may restrain the use or transfer of property the government contends is subject to confiscation.
The defenses to criminal forfeiture differ somewhat from those available in cases of civil
forfeiture. For example, since conviction is a prerequisite to confiscation, acquittal will bar
forfeiture. Third-party interests are less likely to be cut off by virtue of the property’s proximity to
criminal conduct simply because only the defendant’s interest in the property is subject to
confiscation and because bona fide purchaser exceptions are more common. Bona fide purchaser
exceptions protect a good faith purchaser who acquired the property after commission of the
offense – at which time title to the property vested in the United States – but before the
˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ
řȱ

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
declaration of forfeiture. After conviction of the defendant, the court usually declares forfeited
property described in the indictment and found subject to confiscation by the jury or the trier of
fact. Those with claims to the property, other than the defendant, are then entitled to notice and a
judicial hearing on their claims.
’œ™˜œ’’˜—ȱ˜ȱ˜›Ž’ŽȱœœŽœȱ
Disposal of forfeited property is a matter of statute. As noted earlier, the Attorney General and the
Secretary of the Treasury enjoy considerable discretion to transfer confiscated property to state,
local and foreign law enforcement agencies. In most instances, federal law requires that
confiscated cash or the proceeds from the sale of confiscated property which remain after any
transfers or other statutorily authorized disposition be deposited in a special fund. The
Department of Justice Asset Forfeiture Fund and the Department of the Treasury Forfeiture Fund,
first created in 1984, constitute such statutory depositories. Together they receive close to three
quarters of a billion dollars per year, and are available to pay: forfeiture related expenses; rewards
to informants in illicit drug cases; rewards to informants in forfeiture cases; liens and mortgages
against forfeited property; remission and mitigation in forfeiture cases; to equip cars, boats and
planes for law enforcement purposes; to purchase evidence of money laundering or of federal
drug crimes; to pay state and local real estate taxes on forfeited property; to pay overtime, travel,
training and the like.
˜—œ’ž’˜—Š•ȱ˜—œ’Ž›Š’˜—œȱ
The Eighth Amendment states in its entirety that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” A “punitive forfeiture
violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of a defendant’s
offense.” Forfeitures that Congress has designated as remedial civil sanctions do not implicate
double jeopardy concerns unless “the statutory scheme [is] so punitive either in purpose or effect
as to negate Congress’ intention to establish a civil remedial mechanism.”
The Sixth Amendment assures the accused in criminal proceedings the right to a jury trial and to
the assistance of counsel. The right to the assistance of counsel in criminal cases, however, does
not prevent the government from confiscating fees paid to counsel, or, upon a probable cause
showing, from obtaining a restraining order to freeze assets preventing the payment of attorneys’
fees. The Amendment is by its terms only applicable “in all criminal prosecutions,” and
consequently there is no constitutionally required right to assistance of counsel in civil forfeiture
cases.
The Supreme Court’s opinion to the effect that there is no right to a jury trial on disputed factual
issues in criminal forfeiture, rests on a somewhat battered foundation. The fact that criminal
forfeiture is a penalty within “the prescribed statutory maximum” for the triggering offense and
that Rule 32.2 of the Federal Rules of Criminal Procedure affords an expanded jury determination
right, however, would seem to shield federal criminal forfeiture procedures from Sixth
Amendment challenge. Although the implications for the preponderance standard of proof might
appear slightly more ominous, the federal appellate courts have either explicitly or implicitly
accepted the standard in criminal forfeiture cases thus far.
Due process objections can come in such a multitude of variations that general statements are
hazardous. More specifically, due process demands that those with an interest in the property the
˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ
Śȱ

›’–ŽȱŠ—ȱ˜›Ž’ž›ŽDZȱ —ȱ‘˜›ȱ
ȱ
government seeks to confiscate be given notice and opportunity for a hearing to contest. In some
instances, due process permits the initiation of forfeiture proceedings by seizing the personal
property in question without first giving the property owner either notice or the prior opportunity
of a hearing to contest the seizure and confiscation. But absent exigent circumstances, the owner
is entitled to the opportunity for a preseizure hearing in the case of real property where there is no
real danger that the property will be spirited away in order to frustrate efforts to secure in rem
jurisdiction over it. Due process at some point will also require a pretrial hearing on the
forfeitability of property made subject to a postseizure, pretrial restraining order to designed to
prevent dissipation.
While due process clearly limits at some point the circumstances under which the property of an
innocent owner may be confiscated, the Court has declined the opportunity to broadly assert that
due process uniformly precludes confiscation of the property of an innocent owner. Any delay
between seizure and hearing offends due process only when it fails to meet the test applied in
speedy trial cases: is the delay unreasonable given the length of delay, the reasons for the delay,
the claimant’s assertion of his or her rights, and prejudice to the claimant. In other challenges, the
lower federal courts have found that due process permits: the procedure of shifting the burden of
proof to a forfeiture claimant after the government has shown probable cause and allows use of a
probable cause standard in civil forfeitures; postponement of the determination of third party
interests in criminal forfeiture cases until after trial in the main; and fugitive disentitlement under
28 U.S.C. 2466.
Section 3 of Article III of the United States Constitution does not appear to threaten most
contemporary forfeiture statutes. It provides in part that “no attainder of treason shall work
corruption of blood, or forfeiture except during the life of the person attainted.” The section on its
face seems to restrict forfeiture only in treason cases, but at least one court has suggested a
broader scope. Even if Article III when read in conjunction with the due process clause reaches
not only treason but all crimes, its prohibitions run only to forfeiture of estate. They do not
address statutory forfeitures of the type generally found in state and federal law. The critical
distinction between forfeiture of estate and statutory forfeiture is that in the first all of the
defendant’s property, related or unrelated to the offense and acquired before, during or after the
crime, is confiscated. In the second, confiscation is only possible if the property is related to the
criminal conduct in the manner defined by the statute.

ž‘˜›ȱ˜—ŠŒȱ —˜›–Š’˜—ȱ

Charles Doyle

Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968




˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ
śȱ