Crime and Forfeiture: In Short

May 9, 2007 – January 10, 2023 RS22005

Crime and Forfeiture: In Short
Updated January 10, 2023
Congressional Research Service
https://crsreports.congress.gov
RS22005

Crime and Forfeiture: In Short

Summary
Modern forfeiture is a creature of statute that calls for the confiscation of certain property related
to a criminal offense. Forfeiture has long been a tool of law enforcement in the United States.
Congress and state legislatures have authorized its use for over 200 years. Every year, it redirects
millions of dollars’ worth of property connected to criminal activity to lawful uses. Forfeiture law
has always been somewhat unique. By the close of the 20th century, however, legislative bodies,
commentators, and the courts had begun to examine its eccentricities in greater detail because
under some circumstances it could be not only harsh but unfair. The Civil Asset Forfeiture
Reform Act (CAFRA), P.L. 106-185, 114 Stat. 202 (2000), was a product of that reexamination.
Modern forfeiture follows one of two procedural routes. Although crime triggers all forfeitures,
they are classified as civil forfeitures or criminal forfeitures according to the nature of the
procedure which ends in confiscation. Civil forfeiture is an in rem proceeding. The property is the
defendant in the case. Unless the statute provides otherwise, the innocence of the owner is
irrelevant—it is enough that the property was involved in a violation to which forfeiture attaches.
As a matter of expedience and judicial economy, Congress often allows administrative forfeiture
in uncontested civil confiscation cases. Criminal forfeiture is an in personam proceeding, and
confiscation is possible only upon the conviction of the owner of the property.
The Supreme Court has held that authorities may seize moveable property without prior notice or
an opportunity for a hearing but that real property owners are entitled as a matter of due process
to preseizure notice and a hearing. As a matter of due process, innocence may be irrelevant in the
case of an individual who entrusts his or her property to someone who uses the property for
criminal purposes. Although some civil forfeitures may be considered punitive for purposes of the
Eighth Amendment’s excessive fines clause, civil forfeitures do not implicate the Fifth
Amendment’s double jeopardy clause unless they are so utterly punitive as to belie remedial
classification.
The statutes governing the disposal of forfeited property may authorize its destruction, its transfer
for governmental purposes, or deposit of the property or of the proceeds from its sale in a special
fund. Intra- and intergovernmental transfers and the use of special funds are hallmarks of federal
forfeiture. Every year, federal agencies share among themselves the proceeds of jointly conducted
forfeitures. They also transfer hundreds of millions of dollars and property to state, local, and
foreign law enforcement officials as compensation for their contribution to joint enforcement
efforts.

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Crime and Forfeiture: In Short

his is an overview of federal forfeiture law.1 It sketches the origins and general attributes
of forfeiture, describes the distribution of the hundreds of millions of dollars it generates
T annually, and identifies some of the constitutional issues it raises. Congress and state
legislatures have authorized the use of forfeiture for more than 200 years.
Property and Trigger Crimes
Modern forfeiture is a creature of statute that calls for the confiscation of property related to a
criminal offense. 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 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.
Federal confiscation ordinarily begins with a crime, usually a federal crime, but occasionally a
state or foreign offense. Statutes that outlaw conduct often house related forfeiture provisions.
Confiscation is also accomplished by cross reference, sometimes multiple cross references. The
Civil Asset Forfeiture Reform Act (CAFRA) supplies perhaps the most common example of
forfeiture by multiple cross references. Section 981, its initial civil forfeiture provision, declares,
among other provisions, that “[t]he following property is subject to forfeiture to the United States:
. . . (C) Any property, real or personal, which constitutes or is derived from proceeds traceable to
a violation of . . . any offense constituting ‘specified unlawful activity’ (as defined in section
1956(c)(7) of this title).” “Specified unlawful activity,” means, among other things, “with respect
to a financial transaction occurring in whole or in part in the United States, an offense against a
foreign nation involving” various kinds of offenses of violence or official corruption, for
example. The term also includes “any act or activity constituting an offense listed in section
1961(1) of this title” [relating to Racketeer Influenced and Corrupt Organizations (RICO) which
proscribes the use of predicate offenses to acquire or conduct the activities of a commercial
enterprise] . . . .” In addition to the federal crimes identified by citation, the RICO predicate
offense list of Section 1961(1) mentions a category of state felonies. And Section 1961(1)
specifies “any offense involving fraud connected with a case under title 11 [relating to
bankruptcy].” Finally, it cross references as a RICO predicate offense “any act that is indictable
under any provision listed in section 2332b(g)(5)(B) [defining federal crimes of terrorism].”
Additionally, by virtue of 28 U.S.C. § 2461(c), property forfeitable under civil forfeiture
provisions, such as those of 18 U.S.C. § 981, may be confiscated as part of a criminal
prosecution.
Civil Forfeiture
Forfeiture follows one of two procedural routes: criminal or civil. Although crime triggers all
forfeitures, they are classified as civil forfeitures or criminal forfeitures according to the nature of
the procedure which ends in confiscation. Criminal forfeitures are part of the criminal
proceedings against the property owner, and confiscation is possible only upon the conviction of
the owner of the property and only to the extent of the defendant’s interest in the property.
Civil forfeitures are accomplished using civil procedure. Civil forfeiture is ordinarily the product
of a civil, in rem proceeding in which the property is treated as the offender. The guilt or

1 This report is an abridged version of CRS Rept. No. 97-139, entitled Crime and Forfeiture, without the citations,
footnotes, or appendices, found in the longer version. In both reports the term “forfeiture” and “confiscation” are used
interchangeaby.
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innocence of the property owner is irrelevant; it is enough that the property was involved in a
crime to which forfeiture attaches in the manner in which statute demands. Some civil forfeitures
are accomplished administratively; some are not. Administrative forfeitures are, in oversimplified
terms, uncontested civil forfeitures.
As a general rule, since the proceedings are brought against the forfeitable property itself in rem,
actual or constructive possession of the property by the court is a necessary first step in any
confiscation proceeding. The arrest of the property may be accomplished either by warrant under
the Federal Rules of Criminal Procedure; or, if judicial proceedings have been filed, by a warrant
under the Supplemental Rules of Certain Admiralty and Maritime Claims; or without warrant, if
there is probable cause and other grounds under which the Fourth Amendment permits a
warrantless arrest; or pursuant to equivalent authority under state law. 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.
The rules vary somewhat when forfeitable property is located abroad. Section 1355(b) of Title 28
of the U.S. Code vests jurisdiction over such forfeiture proceedings in any federal district court in
the district where the forfeiture-triggering offense occurred or in the United States District Court
for the District of Columbia. In addition, Congress provides a mechanism in 18 U.S.C. § 981(k)
which permits the confiscation of funds in interbank accounts of a foreign bank held in this
country when the foreign bank holds forfeitable assets on account overseas.
For the government, the civil forfeiture begins with seizure of the property and the filing of a civil
complaint against the property. The arresting agency must notify anyone with an interest in the
property of its intent to confiscate and provide an opportunity to request judicial forfeiture
proceedings. Anyone with an interest in the property may contest confiscation with a verified
claim under the Supplemental Rules. The government may serve a claimant with interrogatories
seeking to confirm the validity of the claim and may petition the court to dismiss a claim for
failure to respond to interrogatories or for want of standing.
CAFRA contains a number of provisions designed to soften some of forfeiture’s harsher features.
For example, claimants may enjoy an “innocent owner” defense under CAFRA that varies
depending upon whether their ownership arose before or after the forfeiture-triggering offense.
When they owned the tainted property before the offense, owners must establish that they did not
know of the tainting conduct or did all that could be reasonably expected to prevent the property’s
misuse. Owners that acquired the tainted property after the offense must prove that they were
good faith purchasers who were unaware of the taint. In either case, claimants bear the burden of
proof by a preponderance of the evidence. CAFRA also authorizes legal representation of
indigent property owners under some circumstances. In addition, it allows a court to reduce a
forfeiture that would otherwise be unconstitutionally excessive. Moreover, when 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. Conversely,
the government may be entitled to a restraining or protective order to preserve the property
pending the completion of forfeiture proceedings.
Administrative (Nonjudicial) Forfeitures
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” civil forfeiture cases. It
may be somewhat misleading to characterize administrative forfeitures as uncontested forfeitures,
given the limitations that the government and claimants must overcome before the government is
put to its burden in a judicial proceeding. The most obvious limitation on the government is
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restriction on the nature of property subject to administrative forfeiture: (1) cash, currency,
travelers’ checks or the like; (2) conveyances used to transport or store controlled substances or
precursor chemicals; (3) items that cannot be imported (contraband); or (4) other property worth
less than $500,000.00.
Following the seizure of the property, the government must notify those known to have an interest
in the property and the public at large of the government’s intent to confiscate and of the
procedures to file a claim under the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions of the Federal Rules of Civil Procedure. If there are viable claims, the
government proceeds with its civil judicial complaint against the property. If there are no viable
claims, the property is summarily declared forfeited.
When administrative forfeiture is unavailable, when a claimant has successfully sought judicial
proceedings, or when the government has elected not to proceed administratively, the government
may begin civil judicial proceedings by filing either a complaint or a libel against the property. In
civil forfeitures governed by CAFRA, the government must establish that the property is subject
to confiscation by a preponderance of the evidence. For most civil forfeitures, CAFRA establishes
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 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.
Even when the government establishes that property is subject to civil forfeiture, CAFRA affords
a claimant the right to a judicial reduction of the amount of the confiscation, if the court
determines the extent of the forfeiture is excessive in view of the gravity of the offense and
claimant’s culpability. When 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.
Criminal Forfeiture
A bridge statute, 28 U.S.C. § 2461(c), permits confiscation using criminal forfeiture procedures
whenever civil forfeiture is authorized elsewhere. Like civil forfeiture, criminal forfeiture is a
creature of statute. Unlike civil forfeiture, criminal forfeiture follows as a consequence of
conviction. While civil forfeiture treats the property as the defendant, confiscating the interests of
the innocent and guilty alike, criminal forfeiture traditionally consumes only the property
interests of the convicted defendant, and only with respect to the crime for which he is convicted.
When the property subject to confiscation is unavailable following the defendant’s conviction,
however, the court may order the confiscation of other property belonging to the defendant in its
stead (substitute assets).
The indictment or information upon which the conviction is based must list the property which
the government asserts is subject to confiscation. When the trial is conducted before a jury, either
party may insist upon a jury determination of the forfeiture issue. Since the court’s jurisdiction
does not depend upon initial control of the property, it need not be seized before forfeiture is
declared. Although the courts are authorized to issue pretrial restraining orders to prevent
depletion or transfer of property which the government contends is subject to confiscation, the
Sixth Amendment right to the assistance of counsel precludes pretrial restraint of untainted
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substitute assets necessary to pay for reasonable attorneys’ fees. After conviction of the
defendant, the government may elect to seek either confiscation of forfeitable property or a
money judgment in the amount of its value. If the government seeks confiscation, the court must
determine whether the statutory nexus between the property and the crime of conviction exists. If
the government instead seeks a money judgment, the court must determine the amount the
defendant must pay. A co-defendant, however, may not be held jointly and severally liable for the
judgment if he received none of the tainted property.
Following the conviction, the court issues a preliminary forfeiture order or order for a money
judgment against the defendant in favor of the government. Upon the issuance of a preliminary
forfeiture order, the government must proclaim its intent to dispose of the property and notify any
third parties known to have an interest in the property. Third parties with a legal interest in the
forfeited property, other than the defendant, are then entitled to a judicial hearing, provided they
file a timely petition asserting their claims. Third party claims must be grounded either in an
assertion that they possessed a superior interest in the property at the time confiscation-trigger
misconduct occurred or that they are good faith purchasers. The courts will not recognize the
unsecured claims of general creditors to the property, but will look to state law to determine
whether a third party has the requisite superior interest in the property. Regardless of whether
third parties assert a superior interest or the status of a good faith purchaser, they bear the burden
of establishing their claim by a preponderance of the evidence, and they may not challenge the
district court’s preliminary determination of forfeitability.
Although Rule 32.2 presumes court authority to enter a personal money judgment against a
defendant, the only statute that explicitly conveys such authority is the bulk cash smuggling
provision of 31 U.S.C. § 5332. Some courts have also read such authority into the substitute asset
provision of the Controlled Substances Act adopted by cross reference. When the government is
awarded a money judgment, it is not limited to the forfeitable assets the defendant has on hand at
the time but may enforce the judgment against future assets as well.
Disposition of Forfeited Assets
Disposal of forfeited property is ordinarily a matter of statute. The pertinent statute may require
that the proceeds of a confiscation be devoted to a single purpose, such as the support of
education or deposit in the general fund. Intergovernmental transfers and the use of special funds,
however, are the hallmarks of the more prominent federal forfeiture statutes. The Attorney
General and the Secretary of the Treasury enjoy wide latitude to transfer confiscated property to
federal, state, local, and foreign law enforcement agencies to the extent of their participation in
the case.
Equitable Sharing an Adoptive Forfeiture: Adoptive forfeiture occurs when property is
forfeitable under federal law because of its relation to conduct, such as drug trafficking, which
violates both federal and state law. The Department of Justice “adopts,” for processing under
federal law, a forfeiture case brought to it by state or local law enforcement 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. Existing policy permits adoptive forfeiture where the conduct triggering
the seizure constitutes a violation of federal law.
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Federal Funds: The lion’s share of confiscated cash or the proceeds from the sale of confiscated
property, however, is now deposited in either the Department of Justice Asset Forfeiture Fund, or
the Department of the Treasury Forfeiture Fund. The Treasury and Justice Department Funds
together receive over $1.5 billion per year. Congress subsequently established the United States
Victims of State Sponsored Terrorism Fund, which has distributed periodic payments to certain
victims of terrorism, the fourth round of which will total an estimated $85 million.
Department of Justice Asset Forfeiture Fund: Congress created the Department of Justice Asset
Forfeiture Fund as part of the Comprehensive Crime Control Act of 1984. The Department of
Justice administers the Fund, which receives confiscated cash and the proceeds from forfeitures
conducted under the laws enforced or administered by the Department of Justice and the
Department of Justice’s equitable share of forfeitures conducted by other state, federal, or foreign
law enforcement agencies. Before confiscated cash or the proceeds from the sale of other
confiscated property is paid into the Fund, the Attorney General may often authorize it to be
transferred to or shared with other federal, state, local, or foreign law enforcement agencies who
have participated in the investigation or proceedings that resulted in confiscation.
After money has been paid into the Fund, the Attorney General may use it to pay: [1] forfeiture
related expenses, [2] rewards to informants in illicit drug cases, [3] rewards to informants in
forfeiture cases, [4] liens and mortgages against forfeited property, [5] remission and mitigation
in forfeiture cases, [6] to equip cars, boats and planes for law enforcement purposes, [7] to
purchase evidence of money laundering or of federal drug crimes, [8] state and local real estate
taxes on forfeited property, [9] overtime, travel, training and the like for assisting state and local
law enforcement personnel, [10] federal correctional construction costs, [11] the Special
Forfeiture Fund, and [12] for joint state, local and federal cooperative law enforcement
operations.
In the past, Congress has occasionally directed that the Fund be made available during a
particular year and for a specific law enforcement purpose in anticipation of a surplus in the Fund
after the statutory purposes had been served. At other times, however, it has authorized the
Attorney General to tap this “super surplus” for any law enforcement or Justice Department
purpose.
Department of the Treasury Forfeiture Fund: The Department of the Treasury Forfeiture Fund is
administered by the Secretary of the Treasury and receives deposits of currency and proceeds
from forfeitures under laws enforced or administered by the Department of the Treasury or the
Coast Guard or law enforcement components of the Department of Homeland Security previously
housed in the Treasury Department. Before confiscated cash or the proceeds from the sale of
other confiscated property are paid into the Fund, the Secretary of the Treasury may also
authorize transfer of the property to other federal, state, local, or foreign law enforcement
agencies who assisted in its forfeiture. After money has been paid into the Fund, the Secretary of
the Treasury makes one portion available to the Coast Guard in an amount reflecting its
contributions. The moneys available for the Coast Guard may be used to equip cars, boats and
planes for law enforcement purposes, to pay overtime and similar expenses for state and local law
enforcement officers in a joint operation, and to satisfy environmental requirements before
sinking hazards to navigation.
The Fund is otherwise available to the Secretary of the Treasury for a number of purposes,
including paying: [1] expenses associated with the forfeiture, [2] claims against the property, [3]
liens and mortgages against forfeited property, [4] remission and mitigation, [5] rewards for
information concerning violations of the customs laws, [6] rewards for information or assistance
resulting in a Department of Treasury forfeiture, [7] to equip cars, boats and planes for law
enforcement purposes, [8] to purchase evidence of various crimes traditionally within the
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jurisdiction of the Department, [9] to reimburse the expenses of private individuals associated
with Department law enforcement activities, [10] for equitable sharing, if not accomplished prior
to deposit in the Fund, [11] for “overtime salaries, travel, fuel, training, equipment, and other
similar costs of State and local law enforcement officers that are incurred in joint law
enforcement operations,” and [12] to train foreign law enforcement personnel in Department
forfeiture related matters.
Victims of State Sponsored Terrorism Fund: A Special Master administers the Fund that receives
revenues from the penalties imposed for violations of the International Economic Emergencies
Act (IEEPA) and the Trading with the Enemy Act, among other sources. The Special Master
authorized distributions from the Fund in 2017, 2019, and 2020.
Crime Victims Fund: Forfeitures provide a limited source of revenue for the Crime Victims Fund.
The Justice Department’s Office for Victims of Crime in the Office of Justice Programs
administers the Crime Victims Fund created by the Crime Control Act. The Fund receives
revenues collected as fines for violations of federal criminal law, as special assessments against
misdemeanor offenders, as a consequence of jumping bail, and from the operation of the
espionage and “Son of Sam” forfeiture provisions. The Fund is available for grants to the States
for crime victim compensation and assistance programs, for HHS child-abuse prevention and
treatment grants, and to reimburse the courts for administrative costs.
Constitutional Considerations
In 1993, the Supreme Court handed down a series of decisions that seemed to signal its
uneasiness with the trends in forfeiture law. Yet thereafter, it seemed to deny any inclination to
totally repudiate the government’s broad forfeiture authority, although it incrementally began to
define the constitutional borders of that authority.
Eighth Amendment: 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.” In 1993,
the Supreme Court announced that the Eighth Amendment’s Excessive Fines Clause applies not
only to criminal forfeitures but to some civil forfeitures as well. The full impact remained
uncertain initially, because the Court declined to articulate a test by which to measure particular
forfeitures against the Clause’s proscriptions. Then in United States v. Bajakajian it selected the
standard used as the measure under the parallel Cruel and Unusual Punishment Clause of the
Eighth Amendment: “a punitive forfeiture violates the Excessive Fines Clause if it is grossly
disproportionate to the gravity of a defendant’s offense.” A few circuits also suggest that the
Excessive Fines Clause may preclude a forfeiture that permanently impoverishes the property
owner. CAFRA permits the court to reduce or eliminate a forfeiture that would otherwise be
unconstitutionally excessive.
Double Jeopardy: The Supreme Court’s conclusion in Austin v. United States that certain civil
forfeitures might be considered punitive for purposes of the Eighth Amendment’s Excessive Fines
Clause seemed to have obvious double jeopardy implications. Yet, the Court in United States v.
Ursery reaffirmed its faith in the traditional tests. 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.”
Sixth Amendment: The Sixth Amendment assures the accused in criminal proceedings the right
to a jury trial, to the assistance of counsel, and to confrontation of accusers. The Supreme Court
long ago held that the right to confrontation does not apply in civil forfeiture cases and has not
revisited the issue. The right to the assistance of counsel in criminal cases does not prevent the
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government from confiscating tainted fees paid to counsel or, upon a probable cause showing,
from obtaining a restraining order to freeze assets preventing the payment of attorneys’ fees. Nor,
according to one court, does it entitle an otherwise indigent property owner to the appointment of
counsel for substitute asset forfeiture proceedings. It does, however, preclude the pretrial restraint
of untainted “substitute assets” intended to retain counsel. 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 Court’s opinion in Libretti v. United States, 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. “Any fact
that increases the penalty for a crime beyond the prescribed statutory maximum,” the Court
declared in Apprendi v. New Jersey, “must be submitted to a jury, and proved beyond a reasonable
doubt.” The fact that criminal forfeiture is a penalty within “the prescribed statutory maximum”
and that Rule 32.2 of the Federal Rules of Criminal Procedure affords an expanded jury
determination right would seem to shield federal criminal forfeiture procedures from Apprendi-
based attacks. Although Apprendi’s implications for the preponderance standard might appear
slightly more ominous, the federal appellate courts have either explicitly or implicitly declined to
apply Apprendi to criminal forfeitures.
Due Process: Fairness is the hallmark of due process. Due process objections can come in such a
multitude of variations that general statements are hazardous. That said, the courts have
acknowledged that due process demands that those with an interest in property which the
government seeks to confiscate be given notice and opportunity for a hearing to contest. Actual
notice is not required but the government’s efforts must be “reasonably calculated, under all the
circumstances, to apprise” of the opportunity 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
pre-seizure 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.
Several provisions authorize pretrial restraining orders to preserve the availability of forfeitable
property. Due process, however, requires a probable cause determination of the forfeitability of
property made subject to a post-seizure, pretrial restraining order designed to prevent dissipation.
Due process does not require an adversarial determination of the existence of probable cause; a
grand jury indictment will do. While due process clearly limits 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: postponement
of the determination of third-party interests in criminal forfeiture cases until after trial in the
main; an 11-year delay between issuance of a criminal forfeiture order and amendment of the
original order to reach overseas assets; and fugitive disentitlement under 28 U.S.C. § 2466.
CAFRA established a timetable within which the government must restart forfeiture proceedings
following a claimant’s successful motion setting aside an earlier confiscation declaration.
Finally, counsel in United States v. Monsanto and Caplin & Drysdale v. United States, challenged
on both Sixth Amendment right to counsel and Fifth Amendment due process grounds the
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confiscation of property that paid for, and that was destined to pay for, the services of defense
counsel. The Supreme Court rejected both assertions.
Article III - Forfeiture of estate: Article III of the United States Constitution implicates two
forfeiture issues: forfeiture of estate and standing. The Constitution mentions forfeiture explicitly
only in Section 3 of Article III: “[N]o attainder of treason shall work corruption of blood, or
forfeiture except during the life of the person attainted.” Forfeiture of estate is the confiscation of
all of an attainted defendant’s property without any necessary connection to the crime of
conviction. The section on its face seems to restrict forfeiture of estate only in treason cases,
although at least one court has suggested a broader scope. Substantive due process concerns may
explain why from 1790 to 1984, Congress barred forfeiture of estate as a punishment for non-
treason crimes as well. Even if Article III when read in conjunction with the Due Process Clause
reaches not only treason but all crimes—lest forfeiture, the more severe penalty, be precluded for
the most serious offense, but permitted for lesser crimes—Article III speaks of no other forfeiture
than forfeiture of estate.
Standing: Article III declares that the judicial power of the United States extends to certain cases
and controversies. If a litigant has no judicially recognized interest in the outcome of such a case
or controversy, he is said to lack standing and the court lacks jurisdiction to proceed. In some
instances, a statute or rule imposes additional, more demanding standing requirements. So it is
with civil forfeiture, where claimants face a statutory standing prerequisite. In order to meet
Article III’s case-or-controversy requirement, a plaintiff (including a civil forfeiture claimant)
must establish the three elements of standing: namely, that the plaintiff suffered an injury in fact,
that there is a causal connection between the injury and conduct complained of, and that it is
likely the injury will be redressed by a favorable decision. Claimants in civil forfeiture actions
under CAFRA or the Controlled Substances Act, which recognize an innocent owner defense,
initially satisfy this test by alleging that they have a colorable interest in the property (including
an ownership interest or a possessory interest).
Fourth Amendment: The Fourth Amendment condemns unreasonable search and seizures. The
hallmark of a seizure which is not unreasonable is the presence of a warrant issued upon probable
cause. Nevertheless, warrantless seizures or those grounded in less than probable cause are not
unreasonable under all circumstances. For example, authorities may seize property without a
warrant based on exceptions recognized for searches incident to arrest or for the search of
vehicles. Moreover, several of the older civil forfeiture statutes, particularly those arising in a
customs or maritime context, reflected the traditional view that contraband and other forfeitable
property may be seized without observing the normal demands of the Amendment’s
requirements. Some question may persist over whether warrantless seizures or seizures with less
than probable cause are generally permissible in forfeiture cases, regardless of the want of any
customs or maritime connection. In any event, unlawfully seized evidence may not be used in the
forfeiture proceedings, but unlawful seizure of the res does not doom the proceedings as long as
there is sufficient untainted evidence to support the confiscation.
Ex Post Facto: Neither the states nor the federal government may enact ex post facto laws. The
prohibition applies both to laws which make criminal conduct which was innocent when
committed and laws which increase the penalties for a crime over those which attached when a
crime was committed. The ex post facto bar, however, poses no impediment to the application of
a new sanction such as forfeiture to a continuing crime which straddles the date of enactment.
First Amendment: When confiscation involves material entitled to First Amendment protection,
more demanding standards must be met. In Fort Wayne Books, Inc. v. Indiana, the Court held that
while a single book or film might be seized upon an ex parte probable cause showing, books or
films could not be taken completely out of circulation until after an adversary hearing on their
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obscenity. Yet, the First Amendment stands as no bar to the use of criminal forfeiture to punish
those convicted of engaging in the commercial exploitation of obscenity, nor to the use of civil
forfeiture to confiscate equipment used by an unlicensed radio station.

Author Information

Charles Doyle

Senior Specialist in American Public Law

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
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Congressional Research Service
RS22005 · VERSION 9 · UPDATED
9

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Jan. 10, 2023

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Jan. 22, 2015

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May. 9, 2007

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Topic areas

American Law

Intelligence and National Security

Report Type: CRS Report

Source: CRSReports.Congress.gov, EveryCRSReport.com, University of North Texas Libraries Government Documents Department

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