Indiana Law Review


Restoring Civility—the Civil Asset Forfeiture
Reform Act of 2000: Baby Steps Towards
a More Civilized Civil Forfeiture System

Barclay Thomas Johnson*

Introduction

Starting in 1970, the United States employed civil forfeiture, a civil in rem
proceeding, to combat the nation's drug problems by striking at the proceeds or
instrumentalities ofnarcotics crimes. However, the government's ability, via the

civil forfeiture statutes, to seize property on mere probable cause and, for two

decades, without notice, provoked many concerns. ' Charlotte Juide described her
experience with the United States' civil forfeiture laws as:

On Friday morning, April 27, 1990 ... I was woken up by men
shouting inside my apartment. I did not give anyone permission to enter
my apartment before these people came in.

At least one man came into my room while I was in bed. He had a
gun drawn which he pointed directly at my head. He demanded that I get
out of bed and pack up some things and get out of the apartment
immediately. I was afraid. I had to go to the bathroom and when I asked
the man if I could go to the bathroom, he first went into my bathroom
and looked around. He said he was looking for weapons. He came out
and said I could use the bathroom now, but he would not let me shut the
door. He stayed just outside the bathroom door while I used the toilet.
I think he was watching me the whole time I was on the toilet.2

Ms. Juide, a public housing tenant, further noted:

Before my apartment was entered by force on the morning of April 27,
1990, 1 was not notified that the government was planning to seize my
apartment. I was not told that any complaint for forfeiture had been filed
against my apartment or that I could demand a hearing before the U.S.
Marshalls and [that] local police could forcibly come into my apartment

* J.D. Candidate, 2002, Indiana University School of Law—Indianapolis; M.A., 1997,

University of Massachusetts—Amherst; B.A., 1994, Earlham College, Richmond, Indiana. I

benefited from the thoughts and comments of Professor Florence Wagman Roisman. Any errors
and omissions in the final product remain my own.

1

.

Another problem, not explicitly considered here, is the right to counsel. Although the

court in United States v. Sardone, 94 F.3d 1233 (9th Cir. 1996), held that there was no right to

effective assistance ofcounsel in civil forfeiture proceedings, the Civil Asset Forfeiture Reform Act

properly recognizes that significant property interests are involved in forfeiture proceedings against

an individual's primary residence and provides for the appointment of counsel from the Legal

Services Corporation. Civil Asset Forfeiture Reform Act of2000, Pub L. No. 106-185, § (b), 1 14

Stat. 202, 205 (2000) (codified at 18 U.S.C. § 983(b)).

2. Affidavit of Charlotte Juide, May 11,1 990, Tl 6, 7.



1 046 INDIANA LAW REVIEW [Vol. 35: 1 045

and throw me out on the street.3

Ms. Juide's experience with our nation's civil laws process was, unfortunately,

not unique and therefore helps to illustrate that these laws were ripe for reform.

This Note examines several ofthe serious problems that have persisted for years,
and in some cases, decades in the United States' civil forfeiture laws. This Note
considers the federal, drug-related civil forfeiture laws under which the majority
ofdrug-related civil forfeitures occur. These forfeitures typically occur under 2

1

U.S.C. § 881(a) and usually involve conveyances (cars, trucks, and things that

go),
4 money and negotiable securities,5 and real property.6 This Note then

examines the Civil Asset Forfeiture Reform Act of2000 (Reform Act), which has
made some significant progress towards making these laws more equitable. The
Note does not deal with civil forfeiture or criminal forfeiture under state law or
under federal statutes other than 21 § U.S.C. 881(a).

Toward this end, Part I of this Note first examines the history of forfeiture
laws in general, and United States' civil forfeiture laws in particular. In Part II,

this Note identifies several ofthe major, systemic problems that existed prior to
the reform ofthe civil forfeiture laws. Specifically, this Note singles out (a) lack
ofnotice, (b) the elements ofan "innocent owner" defense, (c) improper burdens
of proof, (d) a split in the federal circuit courts regarding the proper test for

violations of the Eighth Amendment's Excessive Fines Clause, and (e) the
government's problematic motivation in conducting civil forfeiture proceedings.

In Part III, this Note provides a general overview of the Civil Asset Forfeiture

Reform Act of2000 and, in Part IV, examines the ways in which the Reform Act
does and does not remedy the problems discussed in Part II. Finally, drawing on
Part IV, Part V of this Note concludes by reviewing the problems yet to be fully
addressed in the civil forfeiture laws, and reviews the suggestions made in Part
IV.

This Note ultimately argues that the Reform Act fails to fully solve three
problems in the civil forfeiture laws. First, the Act fails to completely equalize

the burdens ofproofrequired ofthe government and innocent owners. Next, the

Reform Act fails to adopt the proper inquiry under the Excessive Fines Clause.
Rather, the Reform Act adopts only a proportionality inquiry as opposed to a
multi-factored approach that considers both proportionality and instrumentality.

Finally, in an effort to solve the post-illegal act transferee problem, the act makes
it impossible for heirs, spouses, and minor children to protect their property.

3. /</. atlJlO.

4. 21 U.S.C. § 881(a)(4) (2000).

5. Mat §88 1(a)(6).
6. Id. at § 88 1 (a)(7). See also Jimmy Gurule, Introduction: The Ancient Roots ofModern

Forfeiture Law, 21 J. LEGIS. 155, 157-58(1995).



2002] RESTORING CIVILITY 1 047

I. Overview of Civil Forfeiture Laws Prior to the Civil Asset
Forfeiture Reform Act of 2000: General Background Information

A. Forfeiture ofProperty Involved in Crimes Has a Long History

The history of civil forfeiture law is not merely an esoteric exercise. The
U.S. Supreme Court's major decisions on civil forfeiture each contain significant
investigations into the history of this legal procedure.

7
Forfeiture of property

involved in wrongful acts has a long and, many would say, ancient history. In the
common law era, the basis for forfeiture was thought to rest in the Bible. Thus,
Exodus 21 :28 provides: "If an ox gores a man or woman to death, the ox will be
stoned and its meat will not be eaten, but the owner ofthe ox will not be liable."

8

This passage was cited by Coke in his treatment ofthe deodand9 (a mistranslation
ofdeo dandum, "a thing that must be offered to God"10) and subsequently noted

7. See, e.g., Austin v. United States, 509 U.S. 602 (1993); Calero-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663 (1974); United States v. 427 & 429 Hall Street, 74 F.3d 1 165 (1 1th Cir.
1 996) (reaching as far back as the Magna Carta to find that a proportionality prong was necessarily

a part of any claim under the Eighth Amendment). But see Austin v. United States, 509 U.S. 602,

628-29 (1993) (Kennedy, J., concurring.) Justice Kennedy observed that

we risk anachronism ifwe attribute to an earlier time an intent to employ legal concepts

that had not yet evolved. I see something of that in the Court's opinion here, for in its

eagerness to discover a unified theory of forfeitures, it recites a consistent rationale of

personal punishment that neither the cases nor other narratives of the common law

suggest.

Id. See also Oliver Wendell Holmes, Jr., The Path ofthe Law, 10 Harv. L. Rev. 457 (1897). In

this speech Holmes famously observed that

[i]t is revolting to have no better reason for a rule of law than that so it was laid down

in the time ofHenry IV. It is still more revolting if the grounds upon which it was laid

down have vanished long since, and the rule simply persists from blind imitation ofthe

past.

Id. at 469.

8. Exodus 2 1 :28 (New Jerusalem Bible).

9. It is a matter ofno small moment that, later, Blackstone discusses the deodand, and this

form offorfeiture, in a section on the king's revenue. Thus he says, "[t]he next branch ofthe king's

ordinary revenue consists in forfeitures oflands and goods for offences." 1 WilliamBlackstone,

Commentaries 289. The United States government and the several states have been accused of

using civil forfeiture not merely as a restitutive mechanism but also to punish and to raise revenue.

See, e.g., HENRY HYDE, FORFEITING OUR PROPERTY RIGHTS 38-40, 53 (1995). Indeed, the link
between civil forfeiture and government revenue has always been a cozy one. During the

Nineteenth Century, before the days of federal income tax, custom duties accounted for more than

eighty percent ofthe federal government's revenue. In those days, civil forfeiture was the primary

method ofenforcing these custom duties and thus served as an important protector ofgovernment

revenue. See Tamara R. Piety, Scorched Earth: How the Expansion ofCivil Forfeiture Doctrine
Has Laid Waste to Due Process, 45 U. Miami L. Rev. 911, 940 n.137 (1991).

3 0. 1 Bouvier's Law Dictionary 844 (8th ed. 1 9 1 4).



1 048 INDIANA LAW REVIEW [Vol. 35: 1045

by Blackstone.
11

In fact, modern civil forfeiture is typically traced back to the
deodand,

12 which was "[a]ny personal chattel whatever, animate or inanimate,
which is the immediate cause ofthe death of a human creature. It was forfeited
to the king to be distributed in alms by his high almoner "for the appeasing,

9

says

Coke, 'of God's wrath.'"
13 The deodand is itselfa fairly ancient concept and its

use in the common law system dates to at least 1292. 14 It was finally abolished
in 1 846. According to Blackstone, at common law there were eight ways that
real property could be forfeited.

15
Only one of these ways, the first of

Blackstone's eight categories, statutory forfeiture, made its way into American
law and, in 1970, it took the form of21 U.S.C. § 881(a).

16
Thus, in UnitedStates

v. Bajakajian, the Court observed "that Congress resurrected the English

common law of punitive forfeiture to combat organized crime and major drug
trafficking."

17 The Court noted that the Senate Judiciary Committee admitted
that the revival of these common law proceedings "represents an innovative
attempt to call on our common law heritage to meet an essentially modern
problem."

18

B. U.S. Forfeiture Law—Prior to Reform
The statutory basis for the federal, drug-related civil forfeitures discussed in

this Note is 2 1 U.S.C. § 88 1 (a). It is under this section that the majority ofdrug-
related civil forfeitures occur; the properties most often seized are conveyances,

money and negotiable securities, and real property. 19 Section 881(a) was first

11. See 1 Blackstone, supra note 9, at 291 ; 3 Coke Institutes 57-58; see also Oliver

Wendell Holmes, Jr., The Common Law, in 3 The COLLECTED WORKS OF JUSTICE HOLMES 127
(Sheldon M. Movick, ed., Univ. of Chicago Press 1995).

1 2. See, e.g. , Calero-Toledo, 4 1 6 U. S. at 68 1 ; Gurule, supra note 6, at 1 56.

13. 1 Bouvier's Law Dictionary, supra note 1 0, at 844.
14. 4 Oxford English Dictionary 467-68 (2d ed. 1 989).

15. The eight ways, which often dealt with religion, according to Blackstone, were crimes

and misdemeanors (the deodand and other specific crimes such as treason and praemunire

{praemunirefacis—maintaining papal sovereignty in England and thus denying the supremacy of
the sovereign over the Church ofEngland)), 4 Blackstone, supra note 9, ch. 8; 3 Bouvier'sLaw
Dictionary, supra note 10, at 265 1, alienation of land contrary to prescribed laws ofthe land (this

method was often used to combat the church's attempt to accumulate land and power), "non-

presentation to a benefice, when forfeiture is denominated a lapse" (that is, if the owner does not

confer the benefice on a minister, his right to the property lapses), simony (the sale or purchase of

ecclesiastical preferments, benefits, or emoluments), non-performance of conditions, waste of a

property such that it damages the interests of those holding the remainder or reversion interests,

breach of copyhold customs (that is, breach of those duties the copyholder owed the lord), and

bankruptcy. 2 BLACKSTONE, supra note 9, at 267-86.

16. Pub. L. No. 91-513, § 511, 84 Stat. 1276 (1970).

17. 524 U.S. 321, 332 n.7 (1998).

1 8. S. Rep. No. 91-617, at 79 (1969), quoted in Bajakajian, 524 U.S. at 332 n.7.

1 9. See Gurule, supra note 6, at 1 57-58.



2002] RESTORING CIVILITY 1049

enacted in 1970 as part of the Comprehensive Drug Control Act of 1970.
20

It

provided:

(a) The following shall be subject to forfeiture to the United States and

no property right shall exist in them:

( 1 ) All controlled substances which have been manufactured, distributed,

dispensed, or acquired in violation of this title.

(2) All raw materials, products, and equipment of any kind which are

used, or intended for use, in manufacturing, compounding, processing,

delivering, importing, or exporting any controlled substance in violation

of this title.

(3) All property which is used, or intended for use, as a container for

property described in paragraph (1) or (2).

(4) All conveyances, including aircraft, vehicles, or vessels, which are

used, or are intended for use, to transport, or in any manner to facilitate

the transportation, sale, receipt, possession, or concealment of property

described in paragraph (1) or (2), except that

—

(A) no conveyance used by any person as a common carrier in
the transaction of business as a common carrier shall be
forfeited under the provisions of this section unless it shall

appear that the owner or other person in charge of such

conveyance was a consenting party or privy to a violation ofthis

title or title III; and

(B) no conveyance shall be forfeited under the provisions ofthis

section by reason of any act or omission established by the

owner thereofto have been committed or omitted by any person
other than such owner while such conveyance was unlawfully in
the possession of a person other than the owner in violation of

the criminal laws of the United States, or of any State.

(5) All books, records, and research, including formulas, microfilm,

tapes, and data which are used, or intended for use, in violation of this

title.
21

As first enacted, § 881(a) was a fairly modest law and provided for the forfeiture
of conveyances only; it did not permit the forfeiture of money, negotiable

securities, or real property. Over the years, § 881 was amended several times in
important ways that made it a significantly more powerful law-enforcement
tool.

22 The 1978 amendment23 added paragraph six, which allows "[a]ll moneys,

20. Pub. L. No. 91-513, § 51 1, 84 Stat. 1276 (1970).

21. Id. (codified at 21 U.S.C § 881(a) (1970)).

22. The statutory scheme has been amended a number oftimes in minor ways as well: Pub.

L. No. 96-132, § 14, 93 Stat. 1048 (1979) (this amendment made minor changes to the statute's

language); Pub. L. No. 99-570, 100 Stat. 3207 (1986) (same); Pub. L. No. 99-646, 100 Stat. 3618

(1986) (same); Pub. L. No. 101-189, 103 Stat. 1 569 (1989) (same); Pub. L. No. 101-647, 104 Stat.

4855 (1990) (added subsections ten (drug paraphernalia) and eleven (firearms) to § 881(a)); Pub.

L.No. 102-239, 105 Stat. 1 91 2 (1991) (made minor changes); Pub. L. No. 103-447, 108 Stat. 4693



1050 INDIANA LAW REVIEW [Vol. 35:1045

negotiable instruments, securities, or other things of value furnished ... in

exchange for a controlled substance" to be forfeited. Section 881 was amended
in 1984

24
to add paragraph (a)(7), which allowed for the forfeiture of real

property. Another important change made by the 1984 amendment was to
provide that the proceeds of civil forfeiture be deposited into special forfeiture
funds at the Department of Justice and the Department ofTreasury. Previously

funds were deposited into the U.S. Treasury's general fund.
25

Section 881 was
amended again in 1988 as part of the Anti-Drug Abuse Act of 1988.26 This
change permitted forfeitures of leasehold interests and added subparagraph

(a)(4)(C), another innocent owner defense. In April 2000, the Civil Asset
Forfeiture Reform Act of2000

27
substantially rewrote the federal civil forfeiture

laws. This amendment is one of the primary subjects of this Note and is
considered in Part III. Finally, the U.S.A. Patriot Act of2001

28
exempted certain

anti-terrorism laws from the civil forfeiture procedures,
29

but provides that

owners ofproperty "that is confiscated under any provision of law relating to the
confiscation ofassets ofsuspected international terrorists

30 may make use ofthe
new civil forfeiture laws and other laws, including the Administrative Procedure
Act to claim property.

31

In its final form prior to the Reform Act, § 88 1 (a) provided that the following
types of property were subject to forfeiture (paragraphs 4, 6, and 7 are most
pertinent):

(a) The following shall be subject to forfeiture to the United States and
no property right shall exist in them:

( 1 ) All controlled substances which have been manufactured, distributed,

(1994) (same); Pub. L. No. 104-237, 1 10 Stat. 3101 (1996) (same).

23. Pub. L. No. 95-633, § 301(a), 92 Stat. 3777 (1978).

24. Pub. L. No. 98-473, §§ 306, 309, 518, 98 Stat. 2050, 2051, 2075 (1984). An issue not
expressly considered in this Note is the "relation-back doctrine," which was added to the scheme

in 1 984 and provides that title vests in the United States on the commission of the illegal acts that

subject the property to forfeiture.

25. The special forfeiture funds provide a unique mechanism whereby the proceeds of

property seized by local police agencies are returned more or less directly to them. See e.g., Brant

C. Hadaway, Comment: Executive Privateers: A Discussion on Why the Civil Asset Forfeiture

Reform Act Will Not Significantly Reform the Practice of Forfeiture, 55 U. MIAMI L. REV. 81

(2000). Hadaway, and others, identify this mechanism as the root of many of the egregious civil

forfeiture excesses.

26. Pub. L. No. 100-690, § 5105, 102 Stat. 4301 (1988).

27. Pub. L. No. 106-185, 1 14 Stat. 202 (2000).

28. U.S.A. Patriot Act of2001, Pub. L. No. 107-56, § 3 16, 1 1 5 Stat. 309-10(Oct. 26, 2001).

29. 1 8 U.S.C. § 983(i)(2)(D) (2002).

30. U.S.A. Patriot Act of 2001, Pub. L. No. 107-56, § 316(a), 115 Stat. 309-10 (Oct. 26,

2001); 18 U.S.C. § 983(a) (2002).

31. U.S.A. Patriot Act of 2001, Pub. L. No. 107-56, § 316(c)(l)(A)-(C), 115 Stat. 309-10

(Oct. 26,2001).



2002] RESTORING CIVILITY 1051

dispensed, or acquired in violation of this subchapter.

(2) All raw materials, products, and equipment of any kind which are

used, or intended for use, in manufacturing, compounding, processing,

delivering, importing, or exporting any controlled substance or listed

chemical in violation of this subchapter.

(3) All property which is used, or intended for use, as a container for

property described in paragraph (1), (2), or (9).

(4) All conveyances, including aircraft, vehicles, or vessels, which are

used, or are intended for use, to transport, or in any manner to facilitate

the transportation, sale, receipt, possession, or concealment of property

described in paragraph (1), (2), or (9), except that

—

(A) no conveyance used by any person as a common carrier in
the transaction of business as a common carrier shall be
forfeited under the provisions of this section unless it shall

appear that the owner or other person in charge of such
conveyance was a consenting party or privy to a violation ofthis
subchapter or subchapter II of this chapter;

(B) no conveyance shall be forfeited under the provisions ofthis

section by reason of any act or omission established by the

owner thereofto have been committed or omitted by any person

other than such owner while such conveyance was unlawfully in

the possession of a person other than the owner in violation of

the criminal laws of the United States, or of any State; and

(C) no conveyance shall be forfeited under this paragraph to the

extent of an interest of an owner, by reason of any act or

omission established by that owner to have been committed or

omitted without the knowledge, consent, or willful blindness of

the owner.

(5) All books, records, and research, including formulas, microfilm,

tapes, and data which are used, or intended for use, in violation of this

subchapter.

(6) All moneys, negotiable instruments, securities, or other things of

value furnished or intended to be furnished by any person in exchange

for a controlled substance or listed chemical in violation of this

subchapter, all proceeds traceable to such an exchange, and all moneys,

negotiable instruments, and securities used or intended to be used to

facilitate any violation of this subchapter, except that no property shall

be forfeited under this paragraph, to the extent of the interest of an

owner, by reason of any act or omission established by that owner to
have been committed or omitted without the knowledge or consent of

that owner.

(7) All real property, including any right, title, and interest (including

any leasehold interest) in the whole of any lot or tract of land and any

appurtenances or improvements, which is used, or intended to be used,

in any manner or part, to commit, or to facilitate the commission of, a
violation of this subchapter punishable by more than one year's
imprisonment, except that no property shall be forfeited under this



1052 INDIANA LAW REVIEW [Vol. 35:1045

paragraph, to the extent of an interest of an owner, by reason of any act
or omission established by that owner to have been committed or omitted
without the knowledge or consent of that owner.

(8) All controlled substances which have been possessed in violation of
this subchapter.

(9) AH listed chemicals, all drug manufacturing equipment, all tableting
machines, all encapsulating machines, and all gelatin capsules, which
have been imported, exported, manufactured, possessed, distributed,

dispensed, acquired, or intended to be distributed, dispensed, acquired,

imported, or exported, in violation ofthis subchapter or subchapter II of

this chapter.

(10) Any drug paraphernalia (as defined in section 1822 of the Mail
Order Drug Paraphernalia Control Act).

(11) Any firearm (as defined in section 92 1 ofTitle 1 8) used or intended
to be used to facilitate the transportation, sale, receipt, possession, or

concealment of property described in paragraph (1) or (2) and any

proceeds traceable to such property.
32

The civil forfeiture laws have been subject to a wide variety ofcriticism and
this Note examines (a) lack of notice, (b) the elements of an "innocent owner"

defense, (c) improper burdens of proof, (d) a split in the federal circuit courts

regarding the proper test for violations of the Eighth Amendment's Excessive
Fines Clause, and (e) the government's problematic motivation in conducting

civil forfeiture proceedings.

II. Specific Criticisms of Civil Forfeiture Laws

A. Notice

The fact that property could be subject to forfeiture without notice was a
serious problem and resulted in certain obvious injustices; hence, Charlotte

Juide's experience with armed men intruding into her bedroom. Prior to United
States v. James Daniel GoodReal Property,33 the civil forfeiture laws required
no notice for the forfeiture ofany type ofproperty. This situation arose from the
U.S. Supreme Court's holding in Calero-Toledo that the government could seize

property without affording prior notice or hearing (at least in the case of

chattels).
34

In James Daniel Good Real Property, the United States filed suit
seeking to forfeit James Daniel Good's house and the surrounding property he

owned in August 1989.35 This in rem suit was based on Good's conviction for

32. 21 U.S.C § 881(a) (2000).

33. 510 U.S. 43, 62 (1993) ("Unless exigent circumstances are present, the Due Process

Clause requires the Government to afford notice and a meaningful opportunity to be heard before

seizing real property subject to civil forfeiture.")

34. Calero-Toledo v. Pearson Yacht Leasing Co., 4 1 6 U.S. 663, 679-80 ( 1 974) (noting that

conveyances were items likely to be removed from the grasp of law enforcement).

35. James Daniel Good Real Property, 5 1 U.S. at 46-47.



2002] RESTORING CIVILITY 1053

promoting a harmful drug in the second degree following a January 1 985 search

of his home. In an ex parte proceeding, the property was declared forfeit and
then seized in late August 1 989 (some four years later). Good contested the
forfeiture, but the district court granted the government's motion for summary
judgment. The court of appeals later affirmed the forfeiture, reversed on other
grounds, and remanded the case for further proceedings. The U.S. Supreme
Court finally struck down the forfeiture, holding that

the seizure of real property under § 881(aX7) is not one of those

extraordinary instances that justify the postponement of notice and

hearing, Unless exigent circumstances are present, the Due Process
Clause requires the Government to afford notice and a meaningful
opportunity to be heard before seizing real property subject to civil

forfeiture.
36

Nonetheless, the Supreme Court's holding in Good does not necessarily
apply to other forms ofproperty that are easily moved or easily disposed .

37
This

means that property is often still seized with no notice, which raises significant
due process concerns. For instance, in United States v. $506,231 in U.S.

Currency,™ the Seventh Circuit rebuked the government after the Chicago Police

and the United States seized and attempted to declare forfeit "half a million

dollars, based on its bare assumption that most people do not have huge sums of
money lying about, and ifthey do, they must be involved in narcotics trafficking
or some other sinister activity."39 The Seventh Circuit further admonished the
government:

As has likely been obvious from the tone ofthis opinion, we believe the
government's conduct in forfeiture cases leaves much to be desired. We
are certainly not the first court to be "enormously troubled by the
government's increasing and virtually unchecked use of the civil

forfeiture statutes and the disregard for the due process that is buried in

those statutes."
40

The concerns about due process inherent in the lack of notice frequently
afforded property owners presents a difficult issue. In part, the issue is tied to the

low burden of proof required under the pre-Reform Act laws, which allowed

property to be seized on mere probable cause. It seems likely the government's
interest in securing possession ofconveyances and other easily disposable items

36. Id. at 62.

37. In ail fairness, it does seem difficult to reconcile desires for additional notice to the

forfeiture of conveyances and other easily disposed of property.

38. 125 F.3d 442 (7th Cir. 1997).

39. Id. at 454; accord United States v. Currency, U.S. $42,500.00, 283 F.3d 977, 98 1 (9th

Cir. 2002) ("A large amount ofmoney standing alone, however, is insufficient to establish probable

cause.").

40. 125 F.3d at 442 (quoting United States v. All Assets of Statewide Auto Parts, Inc., 971

F.2d 896, 905 (2d Cir. 1992)).



1054 INDIANA LAW REVIEW [Vol. 35:1045

means that these items will always be able to be seized without notice; it is
simply too easy to drive, fly, or sail such items away. On the other hand, given
the importance of property rights in America, the requirement that the

government provide notice before the seizure of real property, absent exigent
circumstances, is the right rule.

B. Innocent Owner Defense

One of the most troubling parts of civil forfeiture law has long been the
worry that the property of innocent owners could be forfeited based on third-
party conduct that the owner did not know of and/or could not reasonably
foresee. Although at the common law there was usually no innocent owner
provision, an innocent owner provision has been part of § 881(a) since it was
enacted. Further, since the U.S. Supreme Court decided Calero-Toledo in 1974,
it was widely assumed, based on language in that case, that such a provision was
mandated by the Constitution. In Calero-Toledo, the Puerto Rican government
initiated forfeiture proceedings against a $19,800 rental yacht following the

discovery of one marijuana cigarette that belonged to the individual renting the

yacht. The Court upheld the forfeiture even though all parties conceded the
owner "had no knowledge that its property was being used in connection with or
in violation of (Puerto Rican Law)."

41
However, the Court said it would be

difficult to reject a constitutional claim where

an owner . . . proved not only that he was uninvolved in and unaware of

the wrongful activity, but also that he had done all that reasonably could

be expected to prevent the proscribed use of his property; for, in that

circumstance, it would be difficult to conclude that forfeiture served

legitimate purposes and was not unduly oppressive.
42

Based on this pronouncement, most interested parties assumed an innocent owner
defense was based on the Constitution; that is, until 1996, when the Supreme
Court decided Bennis v. Michigan**

In Bennis, the Court upheld the forfeiture of a car owned by Bennis and her
husband. The forfeiture was based on her husband's conviction for engaging in
gross indecency with a prostitute. The Court held that Bennis was not entitled
to an innocent owner defense even though she did not know her husband would
use the vehicle to violate Michigan's laws and that the forfeiture did not violate

Bennis' due process rights.
44

That decision, that an innocent owner defense is

not constitutionally required, has generated a good deal ofconcern and comment.

For instance, Justice Thomas, in his concurring opinion, noted that

"[improperly used, forfeiture could become more like a roulette wheel employed
to raise revenue from innocent but hapless owners whose property is

41. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668 (1974).

42. Id. at 689-90 (footnote omitted).

43. 516 U.S. 442(1996).

44. Id. at 446-47.



2002] RESTORING CIVILITY 1055

unforeseeably misused, or a tool wielded to punish those who associate with
criminals, than a component of a system of justice."

45
In his dissent, Justice

Stevens went further and echoed the concerns that absent a robust innocent

owner defense, "[t]he logic of the Court's analysis would permit the States to
exercise virtually unbridled power to confiscate vast amounts ofproperty where

professional criminals have engaged in illegal acts."
46 The logic of Justice

Stevens' point and the paucity of the majority's holding was not lost on the
media. For example, the Chicago Tribune asked,

Can the government now seize a hotel or a football stadium merely
because the owners failed to prevent illegal acts that they didn't condone

and knew nothing about? Can it confiscate your house because, while
you were out for the evening, your teenager was caught smoking dope
on the patio? It's hard to see why not.

47

It thus appears that, despite the Supreme Court's admonition that "[i]n our
jurisprudence guilt is personal,"

48
an innocent owner is not constitutionally

entitled to an innocent owner defense. That an innocent owner should be
constitutionally entitled to such a defense because "[fundamental fairness

prohibits the punishment of innocent people"
49

is a matter beyond the scope of

this Note.
50
However, at least one court

51
has distinguished Bennis, noting the car

was an instrumentality of the crime and its value was essentially de minimis (it
was very old). It is thus far from a settled matter that there is not a
constitutionally mandated innocent owner defense.

Prior to the Reform Act, the federal innocent owner defense was a matter of
some confusion primarily for two reasons. First, the statutory innocent owner
provision differed based on what type of property was seized. Second, with

45. Id. at 456 (Thomas, J., concurring).

46. Id. at 458 (Stevens, J., dissenting).

47. Stephen Chapman, Almost-BlindJustice: Sometimes, Even the Innocentare Guilty, CHI.

TRIE., Mar. 7, 1996, at 27.

48. Scales v. United States, 367 U.S. 203, 224 ( 1 96 1 ). Blackstone's discussion ofcriminal

law contains the oft-cited phrase that "to constitute a crime against human laws, there must be, first,

a vicious will; and, secondly, an unlawful act consequent upon such vicious will." 4 BLACKSTONE,

supra note 9, at 21 . Under Blackstone's reasoning, guilt is also personal since it is not possible for

an individual who has not personally acted to be punished since the unlawful act is missing.

Though Blackstone speaks specifically to criminal law, the relationship between civil and criminal

proceedings is addressed infra. See infra notes 73-93 and accompanying text.

49. Bennis, 516 U.S. at 466 (Stevens, J., dissenting).

50. See Barclay Thomas Johnson, The Severest Justice is Not the Best Policy: The One

Strike Policy In Public Housing, 10 J. AFFORDABLE HOUSING & COMMUNITY DEV. L. 234, 263
(2001) (arguing that it violates substantive due process rights to evict (or in this case forfeit)

leaseholds (in this case other property) based on third-party criminal activity).

51. Rucker v.Davis, 237 F.3d 1113, 1125 (9th Cir.) (en banc), reversed, Dcp't of Housing

and Urban Development v. Rucker, 122 S. Ct. 1230 (2002) (reversing on all grounds but not

dealing with Bennis v. Michigan).



1056 INDIANA LAW REVIEW [Vol. 35:1045

respect to real property, the circuits were split on what § 881(a)(7)'s innocent

owner defense actually required.

As to the first reason, prior to its amendment in 1988, with respect to
conveyances, a number of courts held that to come within § 881 (a)(4)(B)'

s

innocent owner provision
52

the conveyance must be stolen or otherwise

unlawfully in the user's possession. It was thus not enough that the owner did
not know of, or consent to, the use.53 The difference between this and the
innocent owner defense for real property is that most courts allow an innocent
owner to establish his or her claim by showing lack of knowledge or consent.54

52. After the 1 988 amendment, § 88 1 (a)(4) had three provisions exempting (A) common

carriers, (B) stolen conveyances, and (C) innocent owners:

(A) no conveyance used by any person as a common carrier in the transaction of

business as a common carrier shall be forfeited under the provisions of this section

unless it shall appear that the owner or other person in charge of such conveyance was

a consenting party or privy to a violation of this subchapter or subchapter II of this

chapter;

(B) no conveyance shall be forfeited under the provisions of this section by reason of

any act or omission established by the owner thereofto have been committed or omitted

by any person other than such owner while such conveyance was unlawfully in the

possession of a person other than the owner in violation of the criminal laws of the

United States, or of any State; and

(C) no conveyance shall be forfeited under this paragraph to the extent of an interest of

an owner, by reason of any act or omission established by that owner to have been

committed or omitted without the knowledge, consent, or willful blindness ofthe owner.

53. The different interpretations are apparently based on the wording and punctuation of §§

88 1 (a)(4)(C) and 88 1 (a)(7). Section 88 1 (aX4XQ protected owners whose conveyances were used

"without the knowledge, consent, or willful blindness of the owner." In contrast, § 881(a)(7)

protected owners whose property was involved in criminal acts "committed or omitted without the

knowledge or consent of that owner." The different interpretation is dubious for three reasons.

First, the "or" of § 881(a)(4)(C) should be read disjunctively because, like § 881(a)(7), which has

no willful blindness requirement, the "or," in the absence of the willful blindness requirement,

would then fall between "knowledge" and "consent" as it does in § 881(a)(7). Moreover, the "or

willful blindness" requirement is, of itself, a heightened burden on the owner that independently,

and in conjunction with knowledge or consent, raises the burden on the owner to almost a

negligence standard. Second, a number of courts have read § 881(a)(7) to include a negligence

standard that is not unlike the "willful blindness" requirement. Thus, even if lack ofknowledge or,

more typically, lack of consent is proved, the owner must prove he or she did all that would

reasonably be expected to prevent the acts. Since § 881(a)(7), a clearly disjunctive provision, is

reasonably read to include a negligence standard, § 88 1 (a)(4)(C) with its already present negligence

or "willful blindness" standard, should be read that way as well. Finally, the conjunctive reading

of § 881(a)(4)(C) would make it merely redundant. If an owner can only save his or her

conveyance by proving he or she did not know, consent, and was not willfully blind of the use, he

or she can essentially save the conveyance only if it was stolen. Such an interpretation would mean

§ 881(a)(4)(C) is superfluous since § 881(a)(4)(B) already covers that situation.

54. See infra note 62 and accompanying text.



2002] RESTORING CIVILITY 1057

This interpretation ofthe initial § 881(a)(4) statute was followed in UnitedStates
v. "Monkey.

"55
In that case, the Fifth Circuit held that it was not enough that the

property, in this case a fishing boat named "Monkey," was used for an
unauthorized purpose (to carry drugs); the user's possession must also be

unlawful.
56

Hence, any time the conveyance is given to the party (even ifthe use

exceeds the conditions under which it is given) the use is lawful. Despite this

rather harsh interpretation, § 881(a)(4) was occasionally interpreted, based on

Calero-Toledo 's dicta, to allow an innocent owner to avoid forfeiture ifhe or she

proved that he or she was uninvolved with and unaware ofthe wrongful activity,
and did all that could reasonably be expected to avoid the illegal use of the

vehicle.
57

This interpretation was, more or less, included when § 881(a)(4) was
amended in 1988 to add subparagraph (C), which protects owners whose
conveyances are used "without the knowledge, consent, or willful blindness of

the owner."
58

Since its addition to the statutory scheme, § 881(a)(4)(C) has

typically been interpreted to provide the same protections as § 88 1 (a)(7),
59
raising

the question: what protection did that provision actually provide?

The innocent owner defense provided in § 88 1 (a)(7) has split the circuits and
even split courts within some circuits.

60
The specific language provides for the

forfeiture of "[a]ll real property . . . (including any leasehold interest) . . . except

that no property shall be forfeited ... to the extent of an interest ofan owner, by
reason ofany act or omission established by that owner to have been committed
or omitted without the knowledge or consent ofthat owner."

61 The disagreement

concerns the language "committed or omitted without the knowledge or consent

of that owner," and whether that language should be read disjunctively (as

opposed to conjunctively), and whether the provisions should be interpreted to

include a negligence standard. The greater number of courts answered both
questions in the affirmative.

Thus, the weight of authority held that under § 881(a)(7) an owner could
avoid forfeiture by proving that he or she either did not have actual knowledge

ofthe activities or, if he or she did have knowledge, did not consent.
62

Further,

55. 725 F.2d 1007 (5th Cir. 1984).

56. Id. at 1012.

57. One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 762 (8th Cir. 1986).
58. 21 U.S.C. § 881(a)(4)(C) (1999).

59. See, e.g., United States v. One 1985 Mercedes Benz Auto., 716 F. Supp. 21 1 (ED. N.C.

1989).

60. Thus, the Eleventh Circuit felt compelled to observe that with regard to whether §

881(a)(7) should be read conjunctively or disjunctively, "[t]he law in this circuit is not clear."

United States v. 6640 S.W. 48th St., 41 F.3d 1448, 1452 (1 1th Cir. 1995). Noting that "Eleventh

Circuit case law is less than clear on whether a disjunctive of conjunctive reading applies to the

'without knowledge or consent' language of the innocent-owner defense," the Eleventh Circuit

embraced the disjunctive reading ofthe old § 881(a)(7) late in 2001 . United States v. Cleckler, 270

F.3d 1331, 1334 (11th Cir. 2001).

61. 21 U.S.C. § 881(a)(7) (2000).

62. See, e.g., United States v. 121 Allen Place, 75 F.3d 1 18 (2d Cir. 1996); United States



1058 INDIANA LAW REVIEW [Vol. 35:1045

most courts hold that an owner must also not engage in willful blindness
63
and

that he or she must have done "all that reasonably could be expected to prevent
the illegal activity once he [or she] learned of it."

64 The negligence standard
seems to come from Calero-Toledo where, in dictum, the Court noted that there
might be constitutional questions raised by the forfeiture of "an owner who
proved not only that he was uninvolved in and unaware ofthe wrongful activity,
but also that he had done all that reasonably could be expected to prevent the

proscribed use ofhis property."
65

Notwithstanding this majority position, at least

one circuit adopted the conjunctive reading that lack of both knowledge and
consent must be proved by the person claiming innocent owner status.66 That the
Reform Act adopts the majority position suggests that this position is the one
Congress originally intended and recommends further analysis to be provided in
Parts III and IV.

C Burden ofProof
Other than the innocent owner questions, perhaps the most problematic pre-

Reform Act part of the civil forfeiture statute was the inequitable burden of
proof. Under this scheme, all property was deemed forfeit once the government
showed probable cause that the property was used to facilitate a narcotics crime
orwas derived from a narcotics crime. Since probable cause could be established
with as little as a confidential informant's tip, the potential for abuse and

disastrous consequences was staggering. For example, in Boston, thirteen
members of the S.W.A.T. team raided Rev. Accelynne Williams' apartment

v. 1012 Germantown Rd., 963 F.2d 1496 (1 1th Cir. 1992); United States v. 7326 Highway 45 N.,

965 F.2d 311,315 (7th Cir. 1992) (noting the circuits are split but taking no position); United

States v. 141st St. Corp., 91 1 F.2d 870 (2d Cir. 1990); United States v. 6109 Grubb Rd., 886 F.2d

618 (3d Cir. 1989); United States v. Lots 12,13,14, &15, Keeton Heights Subdivision, 869 F.2d

942, 947 (6th Cir. 1989) (holding also that a negligence standard does not apply).

63. E.g., United States v. Milbrand, 58 F.3d 841, 844 (2d Cir. 1995).

64. 141st St. Corp., 91 1 F.2d at 878-79 (noting that the disjunctive reading was the only

logical one because in order to consent (or not consent) to the narcotics activity, an individual must

have actual knowledge of it). See also United States v. 418 57th St., 922 F.2d 129, 132 (2d Cir.

1990) (consent is "failure to take all reasonable steps to prevent illicit use of premises once one

acquires knowledge of that use"); United States v. 15621 S.W. 209th Ave., 699 F. Supp. 1531,

1534 (S.D. Fla. 1988), aff'd, 894 F.2d 151 1 (1 1th Cir. 1990) (an innocent owner is one who did

not know of the property's connection to drug trafficking and took every reasonable precaution to

prevent the property's use in drug trafficking). But see Lots 12, 13, 14, & 15, Keeton Heights
Subdivision, 869 F.2d at 947 (negligence standard does not apply).

65. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90 (1974).

66. United States v. 10936 Oak Run Circle, 9 F.3d 74, 76 (9th Cir. 1993) (knowledge that

property was acquired through drug proceeds bars owner from asserting innocent owner defense);

United States v. Lot 11 1-B, 902 F.2d 1443, 1445 (9th Cir. 1 990) (a district court in UnitedStates

v. 5935 Acres ofLand, 752 F. Supp. 359, 362 (D.C. Haw. 1990), later described the holding as

dictum).



2002] RESTORING CIVILITY 1059

searching for drugs and guns, but found none.
67

Rev. Williams, who was
seventy-five years old, died of a heart attack after being "secured" on the floor

by three police officers. As it turned out, the confidential informant who
provided the probable cause had been drunk the night he visited a drug den and

was mistaken about the identity and location of the malefactors. The police, of

course, not being required to meet a higher standard of proof than probable

cause, did not investigate further.
68 Had Rev. Williams survived, the burden

would have been on him to prove that his property was not subject to forfeiture.

This low burden of proof and the use of confidential informants presents

other problems for those challenging the seizures. Thus, with respect to

testimony before the House Judiciary Committee concerning the civil forfeiture

laws, one House Report noted

[t]he Committee has heard testimony from the executor ofan estate who
was placed, along with the beneficiaries of a house, in the position of

having to fight a seizure based on "an unnamed person in prison (having)

told an unnamed government agent that an unnamed vessel was used by
unnamed persons to offload cocaine at the home of the decedent ... on
an unspecified date in December 1988."

69

In such a situation, the familiar problem of proving a negative becomes nearly

insurmountable. It is much easier for the government to prove that such an event
might (the statute only required probable cause) have happened than for the

owner to prove, by a preponderance of evidence, that this chain of events never

happened. The situation also raises the question of whether such a standard is

constitutionally adequate.

The Second Circuit addressed this question specifically when it observed,
"Good and Austin reopen the question of whether the quantum of evidence the
government needs to show in order to obtain a warrant in rem allowing
seizure—probable cause—suffices to meet the requirements of due process."70
The Civil Asset Forfeiture Reform Act addresses the burden of proof concerns
by raising the government's burden to a preponderance of the evidence. This

Note revisits the due process concerns raised by the burden of proof allocations

67. Hyde, supra note 9, at 47-48 (Rep. Hyde collects a number of other horror stories).

68. See Sara Rimer, Minister Who Sought Peace Dies in a BotchedDrug Raid, N.Y. Times,

Mar. 28, 1994, at A4.

69. H.R. Rep. No. 106-192, at lb n.67 (referring to United States v. Good, 510 U.S. 43

(1993); Austin v. United States, 509 U.S. 602 (1993)).

70. United States v. 194 Quaker Farms Rd., 85 F.3d 985, 990 (2d Cir.), cert, denied, 519

U.S. 932 (1996). Accord United States v. $49,576.00 U.S. Currency, 116 F.3d 425 (9th Cir. 1997)

(quoting 194 Quaker Farms Rd., 85 F.3d at 990); United States v. Four Contiguous Parcels ofReal

Property, 1999 WL 701914 (6th Cir. 1999) (Clay, J., dissenting) ("Because I believe that the
allocation ofthe burden ofproof in a civil forfeiture case under 1 9 U.S.C. § 1 61 5 [a similar statute]

violates the Due Process Clause ofthe Fifth Amendment, I respectfully dissent."). But see United

States v. $ 1 29,727.00 U.S. Currency, 1 29 F.3d 486 (9th Cir. 1 997) (rejecting as dictum the circuit's

earlier statements in $49,576.00 U.S. Currency).



1060 INDIANA LAW REVIEW [Vol. 35:1045

in Part IV.C.

D. Eighth Amendment 's Excessive Fines Clause

Another area ofconfusion in the civil forfeiture laws is the role ofthe Eighth
Amendment's Excessive Fines Clause.71 The Eighth Amendment provides that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted."

72
The forfeiture ofsignificant property interests

for minor narcotics crimes can raise Excessive Fines Concerns. Information
presented and analyzed in this section will be raised again in Part IV, where this
Note will discuss why the Reform Act does not fully address Eighth Amendment
concerns.

When a relatively minor narcotics crime leads to civil forfeiture proceedings,
especially where the government proceeds against a primary residence, an
analysis of whether the forfeiture is constitutionally excessive is appropriate.

This vein of analysis has had a fitful and confusing existence in civil forfeiture

law for three major reasons. First, courts have only rarely struck down a
forfeiture as excessive, making it difficult to know where the lines are drawn.
Second, it was, for many years, not clear that the Excessive Fines Clause applied
at all to civil forfeiture. Third, because the Supreme Court has not specified a

7 1 . The Eighth Amendment is lifted almost verbatim from the English Bill ofRights granted

on William and Mary's accession to the English throne in 1 689, following the Glorious Revolution.

5 The Founder's Constitution 369 (Philip B. Kurland & Ralph Lerner eds., 1987) (quoting Bill
of Rights, 1689, 1 W. & M, c.2, § 10 (Eng.)) ("That excessive bail ought not to be required, nor
excessive fines imposed; nor cruel and unusual punishments inflicted."). This section of the

English Bill of Rights seems to have originated in the Case of Titus Oates where Titus was

sentenced to the following punishments for perjury: a fine of 1000 marks on each indictment; to

be stripped of his Canonical Habits; stand in the Pillory and walk around Westminster declaring

his crime with a bag over his head; stand in the Pillory again a week later, be whipped from Aldgate

to Newgate on a Wednesday, be whipped from Newgate to Tyburn by the hangman (on Friday); and

stand in the Pillory every April 24 for the rest ofhis life, stand in the Pillory every August 9 for the

rest of his life, stand in the Pillory every August 10 for the rest of his life, stand in the Pillory on

August 1 1 for the rest ofhis life, and stand in the Pillory on September 2 for the rest ofhis life. The

dissenting Lords found

the saidjudgments [to be] barbarous, inhuman, and unchristian It is contrary to the

declaration on the twelfth of February last, which was ordered by the Lords Spiritual

and Temporal and Commons then assembled . . . whereby it doth appear, that excessive

bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual

punishments inflicted.

Id. at 368 (quoting 10 How. St. Tr. 1079, 1316 (K.B. 1685)). That Mr. Oates' sentence was cruel

is difficult to dispute; it was also literally rather unusual given that he was required to "for an hour's

time, between the hours of 1 and 1 2; with a paper over your head (which you must first walk with

round about to all the Courts of Westminister-hall) declaring your crime." Id. (quoting Case of

Titus Oates, 10 How. St. Tr. at 1316).

72. U.S. Const, amend. VIII.



2002] RESTORING CIVILITY 1061

test for what constitutes an excessive fine, there is no consensus as to what test

should be used to determine whether a forfeiture violates the Excessive Fines

Clause.

As noted, courts have been extremely reluctant to strike down forfeitures and
have used any number of reasons to uphold them. Thus, in United States v. 38
Whalers Cove Drive, the court allowed the forfeiture ofa $ 1 45,000 condominium

(in which the plaintiffhad $68,000 in equity) based on one $250 drug sale.
73
The

court noted that "[t]he Eighth Amendment proscribes only extreme punishments.
Even assuming that the entire amount ofthe forfeiture here is punishment, it does

not violate the outer confines set by the Eighth Amendment."
74

The court

reasoned that the fine was not excessive since the claimant could have faced fines

ranging from $50,000 (under New York law) to $1 million (under federal law).
However, the court in Whalers Cove did find that the Eighth Amendment applied
to civil forfeiture, which the Supreme Court affirmed the following year in

United States v. Austin.
75

In Austin, the Supreme Court held that "forfeiture generally and statutory in

rem forfeiture in particular, historically have been understood, at least in part,
as punishment"

76
and that "[w]e therefore conclude that forfeiture under these

provisions constitutes 'payment to a sovereign as punishment for some offense,'
and, as such, is subject to the limitations ofthe Eighth Amendment's Excessive
Fines Clause."

77
In Austin, the claimant's autobody shop and mobile home were

subject to forfeiture following his conviction for possessing cocaine with intent

to distribute. Although the Supreme Court found that the Excessive Fines Clause

was applicable, it chose not to set forth a multifactor test for what is excessive,

saying that "[p]rudence dictates that we allow the lower courts to consider that
question in the first instance."

78

Because the majority refused to set a test, Justice Scalia's concurring

opinion, which is one of the Supreme Court's few pronouncements on the
subject, has been particularly important in post-Austin Excessive Fines Clause

civil forfeiture jurisprudence. Justice Scalia thought that some guidance was in
order for the lower courts because in rem forfeiture has a unique relationship to
the property that was unlike the traditional Excessive Fines analysis for monetary
fines and in personam forfeiture. Thus, Justice Scalia said the test of
excessiveness for statutory in rem forfeitures should focus "not [on] how much
the confiscated property is worth, but whether the confiscated property has a

close enough relationship to the offense."
79

This test has been described as an

instrumentality test and is based on the notion that in rem forfeiture proceeds

73. United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir. 1991).

74. Id. at 38.

75. 509 U.S. 602 (1993).

76. United States v. Austin, 509 U.S. 602, 618 (1993).

77. Id. at 622 (quoting Browning-Ferris Indus, v. Kelco Disposal, Inc., 492 U.S. 257, 265

(1989)).

78. Id. at 622-23 (emphasis omitted).

79. Id. at 628 (emphasis omitted) (Scalia, J., concurring).



1062 INDIANA LAW REVIEW [Vol. 35:1045

against property using the fiction that the property is guilty ofthe offense. Thus,

it mattered not whether the property was expensive and the offense small, but
rather whether the property was actually involved.

80

A second, oft-cited Supreme Court case dealing with forfeiture and the
Excessive Fines Clause is United States v. Bajakajian.

9
* Bajakqjian

simultaneously complicates and clarifies the analysis for several reasons. First,

though Bajakqjian was resolved under the Excessive Fines clause, it arose under
criminal forfeiture statutes and under different factual circumstances.

82

In Bajakqjian, customs inspectors discovered Hosep Bajakajian and his
family preparing to board an international flight with $357,144 in U.S. currency

that Bajakajian failed to report as required under 31 U.S.C. § 5316(a)(1)(A).
83

Although it is legal to transport that amount, or any amount, of currency, it is
illegal to fail to report the transport of more than $10,000 in "monetary
instruments." The funds involved in such a failure to report are then subject to
forfeiture under 18 U.S.C. § 982(a)(1).

84
Though Bajakajian pled guilty to the

offense, the government did not seek to punish him criminally and instead
proceeded against the money under 18 U.S.C. § 982(a)(1). The district court
found that all $357,144 was involved in the offense, and therefore subject to
forfeiture, but held that "such forfeiture would be 'extraordinarily harsh

9

and

'grossly disproportionate to the offense in question,
9

and that it would therefore
violate the Excessive Fines Clause."

85
The district court therefore ordered

forfeiture of only $15,000, which the court of appeals affirmed.
86 The Supreme

Court affirmed the court of appeals decision holding that "a punitive forfeiture

80. An important point, to be sure. But, after all, it is the Excessive Fines Clause that is at

issue. As this section suggests, this means that a proportionality inquiry is necessary as well. See

infra notes 118-19 and accompanying text.

81. 524 U.S. 321 (1998).

82. The funds were lawfully acquired and were being transported to repay a lawful debt.

The district court also found that Bajakajian "failed to report that he was taking the currency out

of the United States because of fear stemming from 'cultural differences': [Bajakajian was] a

member ofthe Armenian minority in Syria, [and] had a 'distrust for the Government."' Id. at 326.

83. 31 U.S.C. § 5316(a)(1) (1994) requires that

a person or an agent or bailee of the person shall file a report . . . when the person,

agent, or bailee knowingly—( 1 ) transports, is about to transport, or has transported,
monetary instruments ofmore than $ 1 0,000 at one time—(A) from a place in the United
States to or through a place outside the United States.

Id.

Id.

84. 1 8 U.S.C. § 982(a)( 1 ) (2000) provides,

(a)(1) The court, in imposing sentence on a person convicted ofan offense in violation

of section ... 5316 .. . shall order that the person forfeit to the United States any

property, real or personal, involved in such offense, or any property traceable to such

property.

85. Bajakajian, 524 U.S. at 326.

86. United States v. Bajakajian, 84 F.3d 334 (9th Cir. 1996).



2002] RESTORING CIVILITY 1 063

violates the Excessive Fines Clause if it is grossly disproportional to the gravity

of a defendant's offense."
87

Second, the Court's emphasis on the instrumentality distinction is crucial, but

not readily elucidated—especially since the holding identifies proportionality as
the sole test to be used. Justice Thomas, writing for the majority, observed that

the proceeding was against Bajakajian himselfand was not an in rem suit against

the money. Thus, the money that would have been forfeited was not necessarily
the specific money (i.e., the instrumentality) involved in the offense (as would
be a car involved in a drug transaction or the property on which marijuana was
grown in UnitedStates v. Milbrana**). Any instrumentality inquiry was, for this
reason, entirely beside the point. Further, in this case, the forfeiture was the only
punishment because no severe criminal punishment was sought by the
government.

89
This is unlike other narcotics-related forfeitures where the

forfeiture might be a secondary punishment.
90

At most, the case suggests

proportionality is the sole test for cases such as Bajakajian, where the proceeding

is in personam and forfeiture does not necessarily involve an instrumentality of
the crime. Even the majority in Bajakajian recognized that ordinarily an

instrumentality inquiry is so important that "[a] forfeiture that reaches beyond

this strict historical limitation [of the instrumentality inquiry] is ipso facto

punitive and therefore subject to review under the Excessive Fines Clause."
91

Third, the opinion, when left unexamined, strongly suggests that an excessive
fines inquiry should consider only proportionality. In fact, the Court held, "We
now hold that a punitive forfeiture violates the Excessive Fines Clause if it is
grossly disproportional to the gravity of a defendant's offense."

92
Thus, but for

the differences suggested, the case strongly suggests that an excessive fines

analysis should include both a proportionality and an instrumentality inquiry.

Because this case was not a statutory in rem proceeding, however, it ultimately
does not answer or clarify the Court's position on what test is appropriate for

excessive fines inquiries in statutory in rem forfeitures. Nor does Bajakajian
address Justice Scalia's point in Austin that an Excessive Fines analysis should

87. Bajakajian, 524 U.S. at 334.

88. 58 F.3d 84 1 , 848 (2d Cir. 1 995) (holding that forfeiture ofan eighty-five acre parcel of

land owned by offender's mother did not violate the Excessive Fines Clause because value of

property forfeited was not excessive in comparison to the offense (1 362 marijuana plants found on

property), there was a close relationship between the offense and the property, and the mother

"would have to have been blind not to have been aware of her son's marijuana activities").

89. The government decided not to press for severe criminal sanctions and sought instead

to take possession ofBajakajian 's $357,144, which raises the specter of improper motivation. The

distinction the majority seems to have been driving at was between civil in rem forfeitures and

criminal forfeitures.

90. See United States v. Wagoner County Real Estate, 278 F.3d 1 09 1 , 1 1 00 ( 1 0th Cir. 2002)

("There are significant distinctions between Bajakajian and [civil forfeiture cases].").

91

.

Bajakajian, 524 U.S. at 333 n.8 (emphasis omitted).

92. Id. at 334.



1064 INDIANA LAW REVIEW [Vol. 35:1045

consider only instrumentality.
93

Finally, the composition ofthe Bajakajian majority (Justice Thomasjoined
the "liberal" wing of the Court as the fifth vote) muddies the waters when one
tries to predict what the Court might decide under § 881(a). Whether the Court
will be willing to find an Excessive Fines Clause violation in a case involving

drug dealers as opposed to oppressed immigrants is an open question.

Given the lack of clarity (or void
94

) in the Supreme Court's analysis of the
proper manner by which to analyze a forfeiture under the Excessive Fines Clause,
it is not surprising that the lower courts are split on what test is applicable when
a challenge is raised to a forfeiture under the Eighth Amendment. The split has
largely centered on Justice Scalia's concurring opinion in Austin where he sets
forth an instrumentality test.

95 The courts have largely moved away from such
a single-minded approach that focuses solely on either instrumentality or

proportionality. For instance, the Tenth Circuit thought it necessary to

"supplement" the "Bajakajian standard" and add a "factually intensive" inquiry

that focused on the property's role as an instrumentality in the crime.
96

The
majority ofcourts make use ofsome form ofmulti-factored test often combining
(implicitly or explicitly) instrumentality with proportionality.

At least six circuits have adopted some version of a test that combines
instrumentality and proportionality in a multifactored balancing test. The test
typically considers:

(1) the harshness of the forfeiture (e.g., the nature and value of the

property and the effect of forfeiture on innocent third parties) in

comparison to (a) the gravity of the offense, and (b) the sentence that

could be imposed on the perpetrator of such an offense; (2) the

relationship between the property and the offense, including whether use

of the property in the offense was (a) important to the success of the
illegal activity, (b) deliberate and planned or merely incidental and

fortuitous, and (c) temporally or spatially extensive; and (3) the role and

degree of culpability of the owner of the property.
97

The test offered by the court in Milbrand is a nuanced one that offers clear
advantages over a test inquiring solely into instrumentality or proportionality.

93. United States v. Austin, 509 U.S. 602, 628 (1993) (Scalia, J., concurring).

94. Wagoner County Real Estate, 278 F.3d at 1 09 1 n.7. The rule of law would benefit from

a clear rule from the Court on how to deal with these cases. See Antonin Scalia, The Rule ofLaw

as a Law ofRules, 56 U. CHI. L. REV. 1 175 (1989).

95. Austin, 509 U.S. at 608 (Scalia, J., concurring).

96. Wagoner County Real Estate, 278 F.3d at 1 1 9 1

.

97. United States v. Milbrand, 58 F.3d 841, 847-48 (2d Cir. 1995). See also Wagoner

CountyReal Estate, 278 F.3d at 1 09 1 ; United States v. 38 1 9 N.W. Thurman St., Portland, Ore., 1 64

F.3d 1 191 (9th Cir. 1999); United States v. 25 Sandra Court, 135 F.3d 462 (7th Cir. 1998); United

States v. 6040 Wentworth Ave. S., 123 F.3d 685 (8th Cir. 1997); United States v. N. Half of the

Southwest Quarter of Section Thirteen, 106 F.3d 336 (10th Cir. 1997); United States v. 6380 Little

Canyon Rd., 59 F.3d 974 (9th Cir. 1995); United States v. RR #1, 14 F.3d 864 (3d Cir. 1994).



2002] RESTORING CIVILITY 1065

For its part, the Fourth Circuit has endorsed the instrumentality approach

following both UnitedStates v. Austin and UnitedStates v. Bajakajian. In United

States v. Chandler," the court held that a "three-part instrumentality test . . .

considers (1) the nexus between the offense and the property and the extent of

the property's role in the offense, (2) the role and culpability of the owner, and

(3) the possibility of separating offending property that can readily be separated

from the remainder."
99 The Fourth Circuit also enunciated five factors that courts

might also take into account during such an inquiry:

(1) whether the use of the property in the offense was deliberate and

planned or merely incidental and fortuitous; (2) whether the property

was important to the success of the illegal activity; (3) the time during
which the property was illegally used and the spatial extent of its use; (4)
whether its illegal use was an isolated event or had been repeated; and

(5) whether the purpose of acquiring, maintaining or using the property

was to carry out the offense.
100

The court's endorsement of the instrumentality test rested heavily on Justice
Scalia's concurrence in Austin. The court brushed aside concerns about
excessiveness, saying "a concern about excessiveness may be tempered by the
pragmatic possibility of separating offensive property from nonimplicated

property, when the offending property is readily separable."
101

The court
apparently drew its inspiration for this suggestion from Justice Scalia's

concurrence in Austin, where he observed that

[e]ven in the case ofdeodands, juries were careful to confiscate only the

instrument ofdeath and not more. Thus, ifa man was killed by a moving
cart, the cart and its horses were deodands, but if the man died when he
fell from a wheel of an immobile cart, only the wheel was treated as a
deodand, since only the wheel could be regarded as the cause ofdeath.

102

98. 36 F.3d 358 (4th Cir. 1994), cert, denied, 514 U.S. 1082 (1995). A common
misperception is that United States v. Shifflett, No. 97-4021, 1998 U.S. App. LEXIS 23908 (4th

Cir. Sept. 24, 1998), an unpublished opinion, overrules Chandler. It does not because Shifflett

deals with in personam criminal forfeitures pursuant to 21 U.S.C. § 853(a) and is therefore clearly

distinguishable from Chandler. Id. at * 1 7. In a later opinion, United States v. Ahmad, 213 F.3d

805 (4th Cir.), cert, denied, 53 1 U.S. 1014 (2000), the Fourth Circuit endorsed the instrumentality

approach and distinguished Bajakajian saying that "not only did the Bajakajian Court recognize

as the well-established rule that true civil in rem instrumentality forfeitures are exempt from the

excessive fines analysis, but it also did nothing to change or limit this rule." Id. at 814.

99. Chandler, 36 F.3d at 365.

100. Id.

101. Id. at 364. The court finally noted that "to sustain a forfeiture against an Eighth

Amendment challenge, the court must be able to conclude, under the totality ofcircumstances, that

the property was a substantial and meaningful instrumentality in the commission ofthe offense, or

would have been, had the offensive conduct been carried out as intended." Id. at 365.

102. United States v. Austin, 509 U.S. 602, 628 (1993) (citing 1 Blackstone, supra note



1066 INDIANA LAW REVIEW [Vol. 35:1045

The suggestion, as innovative as it is, seems fairly inapplicable to the whole of
civil forfeiture, where parcels of property, cash and cash equivalents, and
conveyances are at issue. It is one thing to take only the wheel of an immobile
cart (or, say, a tractor today), but it is an entirely different matter to attempt to

divide a parcel ofproperty (or bank account) partially tainted by drug money that
the government seeks to declare forfeit under § 881(a).

103
It is unclear how the

Fourth Circuit would deal with situations that are likely to arise today where each
spouse has a property interest in property held in common. Such was not the
case when the deodand was the method used to seize property.

The Fourth Circuit thought a proportionality prong was inapplicable because
the Supreme Court had been only lukewarm about a strict proportionality inquiry,
holding that "the Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences that are
'grossly disproportionate' to the crime."

104
The Fourth Circuit also said that a

proportionality inquiry was "not applicable when considering the excessiveness
ofa forfeiture of specifically identified property"

105
because the statute does not

contain a limitation on the value ofthe property forfeited (unlike a fine or prison

sentence), nor is such constitutional limitation supported by the history of the
Eighth Amendment. 106

In a later opinion that followed Bajakajian, United States v. Ahmad™7 the
Fourth Circuit reaffirmed the supremacy of the instrumentality approach.

Proportionality, the court thought, was simply not applicable wherever the
property is an instrumentality. Notwithstanding Bajakajian's admonitions that

proportionality was proper way to judge an Excessive Fines Clause claim, the
Fourth Circuit distinguished the case because the forfeiture "did not constitute

an instrumentality forfeiture."
108

Therefore, said the court, "not only did the

Bajakajian Court recognize as the well-established rule that true civil in rem
instrumentality forfeitures are exempt from the excessive fines analysis, but it

also did nothing to change or limit this rule."
109

Thus, at least in the Fourth

Circuit, whenever the property is an instrumentality, a forfeiture can never be

9, at 301-02) (Scalia, J., concurring).

1 03

.

See, for example, the messy case of UnitedStates v. 2525 Leroy Lane, 9 1 F.2d 343 (6th

Cir. 1990), in which the court labored to divide what part ofa marital estate an innocent spouse was

entitled to and just how to divide and secure the government's interest in the forfeited part of the

estate.

104. Chandler, 36 F.3d at 365 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring) (holding that a life sentence without possibility of parole for possession

of 672 grams of cocaine was not constitutionally infirm under the Eighth Amendment)).

105. Id. at 365-66.

106. Id at 366.

107. 213 F.3d 805 (4th Cir.), cert, denied, 531 U.S. 1014 (2000).

108. Id. at 814.

109. Id.



2002] RESTORING CIVILITY 1067

excessive.
110

In contrast to the Fourth Circuit, the Eleventh Circuit held in United States

v. 427 & 429 Hall Street"* that "the appropriate inquiry with respect to the
Excessive Fines Clause is, and is only, a proportionality test."

112 The court
looked as far back as the Magna Carta 1 ,3 to find that a proportionality prong was
necessarily a part of any excessive fines analysis. Based on this history, a court

should ask: "Given the offense for which the owner is being punished, is the fine

(imposed by civil forfeiture) excessive?"
114

The multifactor test is the superior one. The test inquires into the two
important prongs (instrumentality and proportionality) to provide those

constitutionally based protections that are necessary. The instrumentality inquiry
is necessary because, as Justice Scalia observed in Austin, modern civil forfeiture
is based on the fiction that the object proceeded against is guilty of the crime

(which is based on the deodand). Given this fiction, it thus makes little sense to
allow the government to proceed against property that was not involved in the
crime (i.e., was not an instrumentality). Hence, even the Supreme Court in
Bajakajian observed that "[a] forfeiture that reaches beyond this strict historical

limitation [of the instrumentality inquiry] is ipso facto punitive and therefore

subject to review under the Excessive Fines Clause."
1 ,5 One might argue, as did

the Eleventh Circuit in United States v. 427 & 429 Hall Street, that an
instrumentality inquiry is inherent in the statute and therefore unnecessary under

an Excessive Fines Clause inquiry.
116

The point is well taken; nonetheless, the

inquiry for whether a deprivation of a property interest is constitutionally valid

is determined not by the content of the statute, but by the Constitution itself.
117

1 1 0. The Ahmad Court did hold, in the alternative, that the forfeiture was not "grossly

disproportional." Ahmad, 213 F.3d at 815.

111. 74 F.3d 1165(1 1th Cir. 1996). Accord United States v. 817 N.E. 29th Drive, Wilton

Manors, Fla., 175 F.3d 1304 (1 1th Cir. 1999).

112. 74F.3datll70.

113. Section 20 of the Magna Carta provides that:

A free man shall not be amerced for a trivial offence, except in accordance with the
degree of the offence; and for a serious offence he shall be amerced according to its

gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the

same way a villain shall be amerced saving his wainage; ifthey fall into our merch. And

none of the aforesaid amercements shall be imposed except by the testimony of

reputable men of the neighborhood.

J.C. Holt, Magna Carta 457 (2d ed. 1992).
1 14. 427 & 429 Hall St., 74 F.3d at 1 172.
115. United States v. Bajakajian, 524 U.S. 321, 333 n.8 (1998) (emphasis added).

1 16. See 427 & 429 Hall St., 74 F.3d at 1 1 71 n.9 (observing that an instrumentality test is
unnecessary because § 881(a)(7) only authorizes the forfeiture of property "'which is used, or

intended to be used, in any manner or part' to facilitate a violation of the Controlled Substances

Act.")-

117. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-42 (1985) (citing

Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (Powell, J., concurring) ("As our cases have



1068 INDIANA LAW REVIEW [Vol. 35:1045

A proportionality inquiry is also necessary because a forfeiture that passes
the instrumentality test might well be unconstitutional because it is grossly

disproportionate to the crime. Such a scenario is easy to imagine when a
relatively minor crime involves a very valuable piece of property. That a
proportionality prong is necessary and required under the Excessive Fines Clause
is eminently logical—it is, after all, the Excessive Fines Clause. The multifactor
balancing test would then inquire into both prongs, as did the Second Circuit's
version of that test in Milbrand:

(1) the harshness of the forfeiture (e.g., the nature and value of the

property and the effect of forfeiture on innocent third parties) in

comparison to (a) the gravity of the offense, and (b) the sentence that

could be imposed on the perpetrator of such an offense; (2) the

relationship between the property and the offense, including whether use

of the property in the offense was (a) important to the success of the
illegal activity, (b) deliberate and planned or merely incidental and

fortuitous, and (c) temporally or spatially extensive; and (3) the role and

degree of culpability of the owner of the property.
118

In civil forfeiture proceedings under § 881(a), using only a proportionality

inquiry is not enough because the proceedings are not merely punitive. Civil

forfeiture is also remedial and preventative. A forfeiture strikes at the
instrumentalities used to facilitate criminal activity and thus attempts to prevent

future criminal activity. A forfeiture is remedial because, to some extent, it
compensates for the crimes already committed. Hence, the House Judiciary

Committee noted:

Forfeiture is also used to abate nuisances and to take the

instrumentalities of crime out of circulation. If drug dealers are using a

"crack house" to sell drugs to children as they pass by on the way to
school, the building is a danger to the health and safety of the

neighborhood. Under the forfeiture laws, we can shut [the illegal
activity] down.

119

When forfeitures are explicitly aimed at the instrumentalities of the crime in an
effort to prevent future crimes and remedy past wrongs, an instrumentality

inquiry is necessary. In such a case, a forfeiture could be "excessive" within the

consistently recognized, the adequacy ofstatutory procedures for deprivation ofa statutorily created

property interest must be analyzed in constitutional terms.")).

118. United States v. Milbrand, 58 F.3d 841, 847-48 (2d Cir. 1995). See also United States

v. Wagoner County Real Estate, 278 F.3d 1091 (10th Cir. 2002); United States v. 3819 N.W.

Thurman St., 164 F.3d 1191 (9th Cir. 1999); United States v. 25 Sandra Court, 135 F.3d 462 (7th

Cir. 1 998); United States v. 6040 Wentworth Ave. S., 1 23 F.3d 685 (8th Cir. 1 997); United States

v. N. Half of the Southwest Quarter of Section Thirteen, 106 F.3d 336 (10th Cir. 1997); United

States v. 6380 Little Canyon Rd., 59 F.3d 974 (9th Cir. 1 995); United States v. RR # 1 , 1 4 F.3d 864
(3d Cir. 1994).

119. H.R. REP. No. 106-192, at 4 (1999).



2002] RESTORING CIVILITY 1069

meaning of the Excessive Fines Clause either because it is grossly

disproportionate, or because there is little or no nexus between the offense and

the property—a two-pronged inquiry is therefore necessary.
E. Problematic Motivations

The next criticism often leveled against the civil forfeiture laws is the
problematic motivations the government faces when it is permitted to keep the
property it proceeds against.

120
Courts and commentators have worried that the

government may be tempted to "fill its coffers" by seizing property for minor
offenses.

121
Thus, Justice Thomas observed in Bennis v. Michigan that

"[ijmproperly used, forfeiture could become more like a roulette wheel employed
to raise revenue from innocent but hapless owners whose property is
unforeseeably misused, or a tool wielded to punish those who associate with
criminals, than a component of a system of justice." 122 That the government

actually views civil forfeiture as a way to increase revenue is reflected by a 1 990
memo sent by the U.S. Attorney General to U.S. Attorneys regarding the increase
of forfeitures to reach budgetary projections. The memo noted, "[w]e must
significantly increase production to reach our budget target."

123
Justice Thomas,

it seems, was not far from the truth.
124

120. Even in mainstream media the issue arises. Hence, on the television drama J,AG., when

Admiral Chegwidden's car is found to contain enough drugs to be subject to civil forfeiture (he

loaned it to a love interest's son), he asks a subordinate what the police department used to do with

seized vehicles when the subordinate was a police officer. The reply was that they sold them to his

brother in-law (the sheriff) for $500. J. A. G. : The Princess and the Petty Officer (CBS television

broadcast, Nov. 14, 2000) (J.A.G. Episode Guide, available at http://www.paramont.com/

television/jag/episodeguide/index.htm).

121. Rucker v. Davis, 237 F.3d 11 1 3, 1 1 25 (9th Cir.) (en banc), reversed, Dep't ofHousing

and Urban Development v. Rucker, 122 S. Ct. 1230 (2002).

122. Bennis v. Michigan, 516 U.S. 442, 456 (1996) (Thomas, J., concurring).

1 23. 38 United States Attorney's Bulletin 1 80 (1990) (noting that "the President's budget for

FY 1990 projects forfeiture deposits of $470 million. Through the first nine months of the year,

deposits total $314 million. We must significantly increase production to reach our budget
target.").

1 24. At the local level, this desire to raise funds using civil forfeiture has had literally deadly

consequences. For instance, in California, Donald Scott was shot and killed by police raiding his

ranch in Malibu. The police were allegedly searching for marijuana plants, but found none. The

District Attorney for Ventura County later concluded that "the Los Angeles County Sheriffs

Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the

government." Office ofthe District Attorney, VenturaCounty, Cal., Report on the Death ofDonald

Scott, Mar. 30, 1993, at 61 , available at http://www.fear.org/chron/scott.txt. Mr. Scott's ranch was

apparently worth some five million dollars. See also Michael Fessier, Jr., Trail's End Deep in a

Wild Canyon West ofMalibu, a Controversial Law Brought Together a Zealous Sheriff's Deputy

and an Eccentric Recluse. A Few Seconds Later, Donald Scott Was Dead, L.A. TIMES MAGAZINE,

Aug. 1, 1993, available at 1993 WL 228821 1.



1070 INDIANA LAW REVIEW [Vol. 35:1045

Given these concerns, it is not surprising to learn that forfeiture was
traditionally viewed as one source of the king's revenue. Blackstone observes
during his discussion ofthe king's revenue that "[t]he next branch of the king's

ordinary revenue [consists] in forfeitures of lands and goods for offences." 125

This view seems to have carried over to the United States, and in 1998 the federal
government seized $449 million in assets and had $1 billion on deposit. 126 As
Part III shows, it is yet unclear to what extent the Reform Act deals with these
issues.

III. The Civil Asset Forfeiture Reform Act of 2000

A. Generally

That the federal civil forfeiture laws were ripe for reform should be obvious.

The second major part of this Note focuses on the ultimate outcome of those
reform efforts: the Civil Asset Forfeiture Reform Act of 2000,

127
sponsored by

Rep. Henry Hyde. Rep. Hyde first introduced legislation to reform the statutory
scheme in June of 1993,

128
which, coincidentally, was several months after the

major newspaper in his district, The Chicago Tribune, began to raise questions

about the propriety of civil forfeiture.
129

The bill was co-sponsored by, among
others, Rep. Barney Frank (D-MA), and enjoyed wide bipartisan support and was
endorsed by several groups, including the ABA, ACLU, and National
Association of Criminal Defense Lawyers.

130
The ultimate outcome of these

efforts was the Reform Act that became law in April 2000.

The Reform Act makes five important changes to the civil forfeiture laws
that concern this Note.

131
First, the Act contains new requirements that the

government obey certain procedural norms and provides penalties for failure to

1 25. 1 Blackstone, supra note 9, at 289.

126. H.R. Rep. No. 106-192, at 3 (1999). See also HYDE, supra note 9 (Rep. Henry Hyde

notes many other abuses in his book). One might argue that this is a fairly small amount ofmoney

for the federal government and a sum that is fairly unlikely to give anyone motives to act

improperly. That $449 million is, after all, less than one-quarter ofone-tenth ofone percent of the

United States' $1.8 trillion budget (or roughly one-third of the cost of one Arleigh Burke Class

Guided Missile Destroyer).

127. Civil Asset Forfeiture Reform Act of2000, Pub. L. No. 106-185, 114 Stat. 202(2000).

128. H.R. 2417, 103rd Cong. (1993).

1 29. See, e.g. , Stephen Chapman, Seizing Property: Law Enforcement 's Dangerous Weapon,

CHI. TRIB., Mar. 7, 1993, at 3; What Other Newspapers are Saying, CHI. Trib., Feb. 27, 1993, at

2 1 (noting an article in the Albuquerque Journal entitled, Innocent People Become Government

Victims, dealing with the excesses of civil forfeiture).

130. See Rhonda McMillion, Fairness in Civil Forfeiture: ABA Backs Bill That Seeks to

Avoid Punishing "Innocent" Property Owners, 82 A.B.A. J. 102 (1996).

131. For a complete treatment ofall the changes made by the Act see Stefan D. Cassella, The

Civil Asset Forfeiture Reform Act of2000: Expanded Government Forfeiture Authority and Strict

Deadlines Imposed on All Parties, 27 J. Legis. 97 (2001).



2002] RESTORING CIVILITY 1071

obey these norms.
132

For instance, within sixty days of the seizure the

government must notify owners that their property has been seized and is subject

to forfeiture. Ifthe government does not notify the owners, the property must be

returned.
133

These provisions include certain procedures that specifically deal

with the seizure of real property
134

and that essentially codify the Supreme

Court's decision in United States v. Good.
135

Thus, situations like Charlotte

Juide's would no longer take place since, absent exigent circumstances, the

government may not proceed against real property without first providing
notice.

136
Importantly, the government may not deprive owners and occupants

of their property prior to a judicial determination that the property is subject to

forfeiture.
137

Second, the Act contains new provisions for appointing counsel for indigent
defendants from the local legal services corporation.

138
Although the court is

given discretion to appoint counsel in most cases, when the property in question
is a primary residence the court is required to appoint counsel when "a person
with standing to contest the forfeiture of property ... is financially unable to

obtain representation by counsel."
139

Importantly, when counsel is appointed, the
government is required to pay "reasonable attorney fees and costs . . . regardless

ofthe outcome of the case."
140

Third, the Act makes important changes to the burden of proof required to
prove forfeiture.

141 The government must now "establish, by a preponderance of

132. Civil Asset Forfeiture Reform Act of2000, Pub. L. No 106-185, §2, 114 Stat. 202, 203

(2000) (codified as amended at 18 U.S.C. § 983(a)(1) (2000)).

133. Id. (codified as amended at 18 U.S.C. § 983(a)(1)(F) (2000)). See also provisions

codified at 18 U.S.C. 983(e), which provide that a person may have a forfeiture set aside if the

government "knew, or reasonably should have known, of the moving party's interest and failed to

take reasonable steps to provide that party with notice."

134. Pub. L. No. 106-185, § 7, 1 14 Stat. 202, 214-15 (2000) (codified as amended at 18

U.S.C. § 985 (2000)).

135. 513 U.S. 43 (1993).

1 36. But courts have typically been lax about applying notice provisions, and, in any event,

the Reform Act allows forfeitures that have been judicially set aside for lack of notice to be refiled

by the government. See 1 8 U.S.C. § 983(e)(2)(A) (2002); United States v. Marolf, 277 F.3d 1 1 56

(9th Cir. 2002); United States v. $39,480 in the United States Currency, 190 F. Supp. 2d 929 (W.D.

Tex. 2002) (refusing to strictly construe ninety-day limit on filing ofcomplaint for forfeiture where

government filed notice one day late).

137. Pub. L. No. 106-185, § 7, 114 Stat. 202, 214-15 (2000) (codified as amended at 18

U.S.C. § 985 (2000)).

138. Pub. L. No 106-185, § 2, 1 14 Stat. 202, 205 (2000) (codified as amended at 18 U.S.C.

§ 983(b) (2000)).

139. Id. (codified as amended at 1 8 U.S.C. § 983(b)(2)(A) (2000)).

1 40. Pub. L. No 1 06- 1 85, § 2, 1 1 4 Stat. 202, 205-6 (2000) (codified as amended at 1 8 U.S.C.

§ 983(c) (2000)).

141. Pub. L. No 106-185, § 2, 1 14 Stat. 202, 205 (2000) (codified as amended at 18 U.S.C.

§ 983(b)(2)(A) (2000)).



1072 INDIANA LAW REVIEW [Vol. 35:1045

the evidence, that the property is subject to forfeiture."
142

Previously, as

observed supra, the fact that the government was able to seize property on only
probable cause caused many courts and commentators to question the
constitutionality of the law.

143

Fourth, the innocent owner provision has been largely retained, but is set
forth more explicitly.

144 As examined below, the Reform Act makes some
attempt to clarify and elaborate the state of the law. Finally, the Reform Act
contains provisions that allow a claimant to petition the presiding court for a

determination ofwhether the forfeiture violates the Excessive Fines Clause ofthe

Eighth Amendment.
145

The court is then required to reduce or eliminate the
forfeiture if the claimant shows, by a preponderance of the evidence, that the

forfeiture is "grossly disproportional."
146

B. Cases and Commentary

Thus far, no particularly relevant cases dealing with the Act have been
decided, with few notable exceptions. In United States v. Duke,

147
the Seventh

Circuit observed that although the Civil Asset Forfeiture Reform Act fixes a five-
year statute of limitations, this provision was not applicable to Duke's case
because the Reform Act applied only to proceedings commenced after August 23,
2000. In United States v. Hooper,™ the court noted that the Reform Act
establishes an exception for a primary residence but only if "the property is not,

and is not traceable to, the proceeds of any criminal offense"
149—since the

claimants property was the proceeds of criminal offenses.
150

There has been relatively little relevant commentary on the Reform Act.

Brant C. Hadaway offers a somewhat pessimistic overview of the Civil Asset
Forfeiture Reform Act. 151 Hadaway's study usefully examines the link between

1 42. Id. (codified as amended at 1 8 U.S.C. § 983(cX 1 ) (2000)).

1 43. See supra notes 69-7 1 and accompanying text.

144. Pub. L. No 106-185, § 2, 1 14 Stat. 202, 206 (2000) (codified as amended at 18 U.S.C.

§ 983(d) (2000)).

145. Pub. L. No 106-185, § 2, 1 14 Stat 202, 209-10 (2000) (codified as amended at 18
U.S.C. § 983(g) (2000)).

146. Pub. L. No 106-185, § 2, 1 14 Stat. 202, 210 (2000) (codified as amended at 18 U.S.C.

§ 983(g)(4) (2000)).

1 47. 229 F.3d 627 (7th Cir. 2000).

148. 229 F.3d 818 (9th Cir. 2000).

149. Id. at 823.

1 50. Other notable cases deal with whether the Act should apply to pending cases commenced

before the Act was passed and became effective. Compare United States v. Section 9,Town 29 N.,

Range 1, 241 F.3d 796 (6th Cir. 2001) (remanding case for application of Civil Asset Forfeiture

Reform Act to case commenced before Act was passed), with United States v. Lot Numbered One

(1) of the Lavaland Annex, 256 F.3d 949 (10th Cir. 2001) (rejecting application of Civil Asset

Forfeiture Reform Act to case commenced before Act was passed).

151. Hadaway, supra note 25. See also Barry L. Johnson, Purging the Cruel and Unusual:



2002] RESTORING CIVILITY 1073

government overreaching in civil forfeiture cases and the monetary incentives the

civil forfeiture system provides to government entities, especially the police.

Hadaway concludes that "despite its laudable procedural reforms, [the Civil
Asset Forfeiture Reform Act] leaves a lot of business yet to be done."

152

Ultimately, however, his suggestion that "ending the drug war ... is the only

rational way to reform civil asset forfeiture" belies the rather Libertarian point
that private, "consensual behavior" cannot, or should not, be the basis for

criminal wrongs.
153

While the "war on drugs" is increasingly recognized as a

manifest failure, it seems exceedingly unlikely that politicians, or the public, will

let go of their popular straw man, the drug dealer. With the wholesale

disassembling of the "war on drugs" some distance in the future, meaningful
reform can still strike at the improper incentives the civil forfeiture system gives

to law enforcement agencies. Raising the burden of proof to clear and

convincing evidence, as discussed infra, would go a long way towards limiting
civil forfeiture's use as a tool for raising revenue.

154
Completely cutting the

financial cord between civil forfeiture and local law enforcement agencies is

simply politically impractical and ultimately unwise. The U.S. Supreme Court
has recognized that there is a legitimate reason to return seized property to the

police:

[T]he Government has a pecuniary interest in forfeiture that goes beyond

merely separating a criminal from his ill-gotten gains; that legitimate

interest extends to recovering all forfeitable assets, for such assets are

deposited in a Fund that supports law-enforcement efforts in a variety of
important and useful ways. The sums of money that can be raised for
law-enforcement activities this way are substantial, and the
Government's interest in using the profits of crime to fund these

activities should not be discounted.
155

The link between the government and the profits from illegal activities should be
regulated; it should not be abolished.

IV. Ways in Which the Civil Asset Forfeiture Reform Act
Does and Does Not Solve The Problems Identified

Rep. Hyde's Civil Asset Forfeiture Reform Act is a major step forward. In

many ways it cures or attempts to cure the most serious problems inherent in the
civil forfeiture laws. However, in several ways it is unclear whether the Reform
Act is up to the task of curing civil forfeiture's ills.

The Autonomous Excessive Fines Clause and Desert-Based Constitutional Limits on Forfeiture

After United States v. Bajakajian, 2000 U. ILL. L. REV. 461 (2000).

152. Hadaway, supra note 25, at 113.

153. Id.

1 54. See discussion infra Part IV.C.

155. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989) (citation and
footnote omitted).



1 074 INDIANA LAW REVIEW [Vol . 3 5 : 1 045

A. Problematic Motivations

First, the Reform Act does not specifically address the issue of the
government's problematic motivations. There are, it is true, provisions in the

Reform Act for "Enhanced Visibility ofthe Asset Forfeiture Program,"156 which
purport to raise civil forfeiture's profile in order to subject it to public and

government scrutiny. Changes such as the new burden of proof and the
requirement to pay the attorney fees and costs of indigent defendants will make
civil forfeiture a less attractive option for government and should therefore cut

back on any tendency by the government to use it as a way to "fill its coffers."
Only time will tell ifthe Reform Act makes changes that sufficiently staunch the
government's desire to seize property for its own gain.

B. Eighth Amendment 's Excessive Fines Clause

Next, the Reform Act codifies an Eighth Amendment inquiry and places the
burden of proof on the defendant to show, by a preponderance of the evidence,

that the forfeiture was grossly disproportional to the gravity ofthe offense. 157 By
basing the inquiry on a comparison of the gravity of the offense to the value of

the property, the Reform Act resolves the circuit split in favor of using only a

proportionality test to determine when a forfeiture is unconstitutional under the
Eighth Amendment. As the Act stands now, however, it does not fully realize
those protections that the Eighth Amendment affords citizens. Since the test
announced by those circuits adopting a proportionality and instrumentality test

is constitutionally mandated, those circuits should continue to use that test until

the statutory scheme is amended.

A one-pronged proportionality test is appropriate only where, as in
Bajakajian, the purpose ofthe civil forfeiture is to punish. Where the sole goal
of the forfeiture proceeding is to punish, it makes sense that the only relevant
question is: whether the fine is grossly disproportionate to the offense.

158

Further, in cases such as Bajakajian, the subject of the forfeiture is necessarily

the object of the offense (hence, there is always a nexus between the crime and

the property—an instrumentality inquiry is pointless in these cases). However,
this same argument does not hold under civil forfeiture cases proceedings under

§ 881(a).

In proceedings under § 881(a), proportionality is not enough because the

proceedings are not merely punitive, they are also remedial and preventative.

Thus, the House Report on the Reform Act explicitly stated,

Forfeiture is also used to abate nuisances and to take the

156. Civil Asset Forfeiture Reform Act of 2000, Pub. L. No 106-185, § 19, 114 Stat. 202,
223-24 (2000) (codified as amended at 28 U.S.C. § 524 (2000)).

157. Pub. L. No 106-185, § 2, 1 14 Stat. 202, 209-10 (2000) (codified as amended at 18

U.S.C. § 983(g) (2000)).

1 58. See supra text accompanying notes 88-89.



2002] RESTORING CIVILITY 1075

instrumentalities ofcrime out of circulation. If drug dealers are using a

"crack house" to sell drugs to children as they pass by on the way to
school, the building is a danger to the health and safety of the

neighborhood. Under the forfeiture laws, we can shut [the illegal
activity] down. If a boat or truck is being used to smuggle illegal aliens

across the border, we can forfeit the vessel or vehicle to prevent its being
used time and again for the same purpose. The same is true for an

airplane used to fly cocaine from Peru into Southern California, or a

printing press used to mint phony $100 bills.
159

Where forfeitures are explicitly aimed at the instrumentalities ofthe crime in an
effort to prevent future crimes, and where the forfeiture is aimed at the

instrumentalities or proceeds ofthe crime in an effort to remedy the wrongs done,

an instrumentality inquiry is necessary. While the Judiciary Committee's

example of a crack house leaves little question as to whether the house is an

instrumentality, the situation is often not so clear. More often, the forfeiture
action involves property that had a fleeting association with the crime or was

purchased with the proceeds of a crime. In these cases, the fine the government

seeks to impose via civil forfeiture could be excessive either because it is grossly

disproportionate, or because there is little or no nexus between the offense and

the property. In the latter case, the instrumentality requirement serves to protect

property not closely associated with the criminal offense (i.e., that property an

individual could not reasonably suspect was subject to forfeiture).

C. Burden ofProof

Potentially, the most important part ofthe Reform Act is the change it makes

to the government's burden of proof. By requiring the government to meet a
preponderance of the evidence standard, the Act makes it less likely that civil

liberties will be infringed on the basis of an accusation made by a confidential
informant. Thus, the changes to the Act remedy the most glaring inequities, but

do not go far enough. In a country based on the cry of life, liberty, and property,

it is surprising that, barely two centuries after its founding, the government

should be able to deprive its citizens oftheir core constitutional right to property

based on a mere preponderance of the evidence.
160

Further, the Supreme Court

has recognized for more than a century that a forfeiture is "quasi-criminal in
character. Its object, like a criminal proceeding, is to penalize for the

commission of an offense against the law."
161 The Boyd Court noted that all

159. H.R. Rep. No. 106-192, at 4 (1999).

160. Rep. Henry Hyde first introduced legislation to reform the civil forfeiture laws in 1993

(H.R. 2417, 103d Cong. (1st Sess. 1993)). This version ofthe bill would have changed the burden

of proof to clear and convincing evidence. H.R. 2417, 103rd Cong. § 4 (1st Sess. 1993).

161. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965) (citing Boyd v.

United States, 1 16 U.S. 616, 634 (1886)). Boyd also stands for the rule that in such quasi-criminal

actions that would deprive a person of significant property rights, our criminal constitutional

protections apply.



1076 INDIANA LAW REVIEW [Vol. 35:1045

"suits for penalties and forfeitures, incurred by the commission of offenses
against the law, are of this quasi-criminal nature."

162
Given the punitive and

quasi-criminal nature of civil forfeiture proceedings, a higher standard of proof

is appropriate. The fact that a number of states have adopted such an approach
suggests that higher burdens of proof do not overly burden police and
prosecutors.

In both Nevada and Florida, the government is required to meet a higher
standard than a mere preponderance ofthe evidence. TheNevada Supreme Court
has held that in civil forfeiture cases the government's burden must be "[p]roof

beyond a reasonable doubt ... in order that the innocent not be permanently

deprived of that property."
163

Such a statement hints at the Matthews v.
Eldridge

164
inquiry that courts should engage in to determine whether more

process is necessary before depriving an individual of his or her rights. Under
Matthews v. Eldridge, a court considers:

[f]irst, the private interest that will be affected by the official action;

second, the risk ofan erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government's interest,

including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.
165

Under the test, it is clear that the first prong weighs heavily in favor ofadditional

procedure. The right to property (whether real property or chattels) is a
fundamental one and one upon which this nation was established. In fact,
property rights have often been considered the most fundamental right—the right
on which all others are based.

166

Under the second prong, there is significant reason to believe that there is an
unacceptable risk of error that exists that innocent parties will be deprived of

property, and that raising the burden would mitigate this risk. It is not enough to

say that those parties who really are innocent have an opportunity to prove their
innocence because a negative is enormously difficult to prove. The difficulty of
proving a negative essentially puts a much heavier burden of proof on the
owner.

167 The burden should be on the government, and an innocent party should

162. Boyd v. United States, 116 U.S. 616, 634 (1886).

163. A 1983 Volkswagen v. County of Washoe, 699 P.2d 108, 109 (Nev. 1985).
164. 424 U.S. 319(1976).

165. Id. at 335.

1 66. See, e.g. , James W. Ely, Jr., The Guardian of Every Other Right ( 1 992); Richard

Pipes, Property and Freedom (1999). Even Machiavelli accords property some special

importance; though he made the point in a slightly different manner saying, "[b]ut above all, [the

Prince] must abstain from the property of others, because men forget the death of a father more

quickly than the loss of a patrimony." Niccolo Machiavelli, The Prince 67 (Harvey C.

Mansfield trans., 2d ed. 1998) (1513).

1 67. On first blush, ofcourse, it appears the parties have equal burdens. However, that is far

from the truth. It is significantly easier for the government to prove it is more likely than not that



2002] RESTORING CIVILITY 1077

not be left to negate a set of facts like those the House Judiciary Committee

described:

The Committee has heard testimony from the executor of an estate who
was placed, along with the beneficiaries of a house, in the position of

having to fight a seizure based on "an unnamed person in prison (having)
told an unnamed government agent that an unnamed vessel was used by
unnamed persons to offload cocaine at the home ofthe decedent ... on
an unspecified date in December 1988."

168

Raising the government's burden ofproofwould prevent a significant number of
individuals from being forced to meet this heightened burden or face losing

property.

The final prong also weighs in favor of raising the burden of proof. The
government has a significant interest in combating criminal narcotics activity in

an efficient and effective manner. Civil forfeiture of property used to facilitate

these crimes and property that is the proceeds ofthese crimes is an effective way
to combat criminal drug activity. However, this method is effective only insofar

as it is not overbroad and does not strike at the truly innocent. If innocent

persons are swept into these proceedings, the government's interest in effective

law enforcement is actually retarded. Those individuals who would otherwise
assist law enforcement to discover and root out drug activity will be unwilling

to become involved for fear of losing their property for having even a passing
association with the criminal activity. Under these circumstances, as Justice

Thomas noted, "forfeiture could become more like a roulette wheel employed to
raise revenue from innocent but hapless owners whose property is unforeseeably

misused, or a tool wielded to punish those who associate with criminals, than a
component of a system ofjustice."

169

Raising the burden of proof combats this problem in two ways. First, by
raising the government's burden of proof going forward, one ensures from the

start that we are substantially more certain that the property is actually subject
to forfeiture before forcing an allegedly innocent party to prove the property is

not subject to forfeiture. After the government has shown by at least clear and
convincing evidence that the property is subject to civil forfeiture, it makes sense
to force the party claiming innocence to meet the burden by a preponderance of

the evidence. Second, forfeiture has long been recognized as a quasi-criminal

proceeding. Thus, the U.S. Supreme Court held civil forfeiture is "quasi-criminal
in character. Its object, like a criminal proceeding, is to penalize for the

commission ofan offense against the law."
,7° Though proofbeyond a reasonable

the property was in some way used to facilitate a narcotics crime, or is the proceeds of a narcotics

crime, than it is for the owner to prove the property was never used to facilitate a narcotics crime

and is not, in any way, the proceeds of a narcotics crime.

168. H.R. REP. No. 106-192 at n.67 (1999).

169. Bennis v. Michigan, 516 U.S. 442, 456 (1996) (Thomas, J., concurring).

170. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965) (citing Boyd v.

United States, 1 16 U.S. 616, 634 (1886)).



1078 INDIANA LAW REVIEW [Vol. 35:1045

doubt may not be appropriate for these proceedings; a standard such as clear and
convincing evidence certainly fits. Given the quasi-criminal and punitive nature
ofa civil forfeiture proceeding, the government should be forced to meet a higher
burden than a mere preponderance ofthe evidence. To decide otherwise would
simply not reflect the value our society places on private property and invites
heavy-handed government actions.

Recognizing the importance of property rights in the United States and the

quasi-criminal nature of forfeiture actions, even the House Judiciary Committee
Report acknowledged that something higher than preponderance ofthe evidence
is necessary. "The general civil standard of prooff,] preponderance of the
evidence^] is too low a standard to assign to the government in this type of case.
A higher standard of proof is needed that recognizes that in reality the
government is alleging that a crime has taken place."

171
The Committee thus

recognized that the nature of a civil forfeiture proceeding meant that a
preponderance standard is simply inequitable. It also provided a reason for not

seeking the criminal standard of beyond a reasonable doubt. The Committee
noted that

u
[s]ince civil forfeiture doesn't threaten imprisonment, proof beyond

a reasonable doubt is not necessary. The intermediate standard, clear and
convincing evidence, is more appropriate."

172
This accords with a sizeable

number of states that require proof beyond a preponderance of the evidence.
The Florida, Louisiana, and Nevada Supreme Courts 173 have all held, based

on these or similar concerns, that more than a mere preponderance of evidence
is necessary. Thus, in Department ofLaw Enforcement v. Real Property, the
Florida Supreme Court noted that, '"due proof under the Act constitutionally
means that the government may not take an individual's property in forfeiture
proceedings unless it proves, by no less than clear and convincing evidence, that

the property being forfeited was used in the commission ofa crime."
174

Further,

California, New York, and Wisconsin all provide for higher burdens ofproofby
statute. For instance, New York requires that "ifthe action is not grounded upon
[a] conviction, it shall be necessary in the action for the claiming authority to

prove the commission of a pre-conviction forfeiture crime by clear and

convincing evidence."
175

It thus becomes difficult to argue that such a standard

171. H.R.Rep.No. 106-192, at 12 (1999).

172. Id. at 13 (footnote omitted).

173. Dep't of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla. 1991); State v.

Manuel, 426 So. 2d 140, 148 (La. 1983) ("At trial ofthe forfeiture proceeding, of course, the state

must prove each element of its case beyond a reasonable doubt because forfeiture proceedings are

quasi-criminal."); A 1983 Volkswagen v. County of Washoe, 699 P.2d 108, 109 (Ncv. 1985)
(recognizing the quasi-criminal nature of forfeiture actions stating "[pjroof beyond a reasonable

doubt is therefore appropriate in order that the innocent not be permanently deprived of their

property.").

174. 588 So. 2d at 968.

175. N.Y. C.P.L.R. § 1311(l)(b) (2000) (subsection (3)(b)(i) also provides, with some

exceptions, that in actions against a non-criminal defendant the "claiming authority" must meet a

clear and convincing burden of proof). Accord Cal. Health & Safety Code § 1 1488.4(i)(l)



2002] RESTORING CIVILITY 1079

is unworkable or unduly burdensome.

In sum, there are four major reasons that support a higher burden of proof.

First, the value placed on private property in America and throughout American

history requires that the government bear the heavier burden when seizing
property in civil forfeiture cases. Under the present system, because the property

owner must negate the government's case, he or she has a heavier burden.

Second, the due process concerns reflected in the Matthews v. Eldridge test
176

point to an unacceptable risk that innocent parties will be erroneously deprived

of their property. Raising the government's burden of proof will reduce this

danger. Third, the quasi-criminal nature of civil forfeiture demands that the

government be forced to prove the property is subject to forfeiture by something

more than a mere preponderance ofthe evidence. Finally, the fact that a number
of states, eitherjudicially or via statute, have adopted a higher standard suggests

this is a workable standard that protects individual rights and helps fight crime.

D. The Innocent Owner Provision

Another important part of the Reform Act concerns the changes it makes to

the innocent owner provisions. The Reform Act replaces the separate "innocent

owner" provisions of§§ 88 1 (a)(4), (6) and (7) with one innocent owner provision

that applies to all federal civil forfeitures. The Act does not, however,

specifically identify which pre-Reform Act test should be used (disjunctive,

disjunctive with negligence standard, or conjunctive reading). However, a close

look at the Act's language readily yields an answer. As it now reads, the Reform
Act provides,

the term "innocent owner" means an owner who

—

(i) did not know of the conduct giving rise to forfeiture; or
(ii) upon learning ofthe conduct giving rise to the forfeiture, did all that

reasonably could be expected under the circumstances to terminate such

use of the property.

(B)(i) For the purposes of this paragraph, ways in which a person may
show that such person did all that reasonably could be expected may
include demonstrating that such person, to the extent permitted by law

—

(I) gave timely notice to an appropriate law enforcement agency of

information that led the person to know the conduct giving rise to a
forfeiture would occur or has occurred; and

(II) in a timely fashion revoked or made a good faith attempt to revoke
permission for those engaging in such conduct to use the property or

took reasonable actions in consultation with a law enforcement agency

to discourage or prevent the illegal use of the property.

(iii) A person is not required by this subparagraph to take steps that the
person reasonably believes would be likely to subject any person (other
than the person whose conduct gave rise to the forfeiture) to physical

(2000) (reasonable doubt); Wis. Stat. § 973.076(3) (2000).

176. 424 U.S. 319,335(1976).



1080 INDIANA LAW REVIEW [Vol. 35:1045

danger.
177

The plain language of the Reform Act suggests that it adopts what was the
"knowledge or consent" (disjunctive) reading of § 881(a)(7) and other statutes.
The Act also plainly adopts the negligence standard used by several courts prior
to the passage of the Reform Act. Although subparagraph (A) refers only to
actual knowledge and a negligence standard and makes no mention of consent,
subparagraph (B)(II) refers to revoking consent for the offender's use of the

property. The Act thus rejects the position that some courts have taken with
regard to conveyances and other chattels, that the use ofthe property for activity

leading to forfeiture must be illegal (i.e., the car must have been stolen or taken
without permission). One cannot simply argue, as Bennis did, that she did not
know her husband would use the car to engage in sexual activity with a
prostitute.

178 A plain meaning reading of the Reform Act seems to reject that
position.

That the "knowledge or consent" test with a negligence standard was the one
Congress intended to enact is supported by two other points. First, the Judiciary
Committee Report on the Reform Act notes that the bill rejects the conjunctive
reading, saying, "the [innocent owner] protections of the [sections] using the

'committed or omitted' language have been seriously eroded by a number of
federal courts ruling that qualifying owners must have had no knowledge ofand

provided no consent to the prohibited use of the property."
179

Further, the

Committee specifically said that the purpose ofthis innocent owner defense was
to provide "a meaningful innocent owner defense [which] is required by
fundamental fairness."

180
Thus, under the Civil Asset Forfeiture Reform Act, an

innocent owner can now avoid forfeiture by proving either lack ofknowledge or
lack of consent so long as he or she was not negligent in discovering the illegal
use of his or her property.

The Reform Act also makes an attempt to solve the post- i ! legal act transferee
problem. The post-illegal act transferee problem arose based on a disjunctive
reading of the innocent owner provisions as informed by the U.S. Supreme
Court's opinion in 92Buena VistaAve.m There the Court held that the innocent
owner defense is not limited to bona fide purchasers and that the innocent owner
provisions are not nullified by the relation-back doctrine.

182
Thus, when the

1 77. 18 U.S.C. § 983(d)(2) (2000).

178. Bennis v Michigan, 516 U.S. 442 (1996).

179. H.R.REP.NO. 106-192, at 15 (1999).

180. Id.

181. 507 U.S. Ill (1993). The post-illegal act transferee problem is perhaps best

demonstrated in United States v. One 1973 Rolls Royce, 43 F.3d 794 (3d Cir. 1994). In One 1973

Rolls Royce, the Third Circuit held that the transferee's knowledge about whether the property was

used to facilitate a drug crime is evaluated at the time of the crime and not at the time of the

transfer. Thus, criminals could transfer a wide range of property even ifthe transferee knew, at the

time of the transfer, that the property was used to facilitate a crime.

1 82. 92 Buena Vista Ave. , 507 U.S. at 1 26-27 (the relation-back doctrine would vest title in



2002] RESTORING CIVILITY 1 08

1

innocent owner provision is read disjunctively, someone to whom property is
transferred after the offending acts would be able, in most cases, to claim he or

she did not consent to the illegal acts. A bad actor would then be able to insulate
many properties by simply transferring property to third parties after the
offending acts. A major problem, to be sure.

The Reform Act attempted to solve this problem by defining after-conduct
innocent owners narrowly. Thus, the only individuals who qualify as after-
conduct innocent owners are those considered to be bona fide purchasers for

value and those who were reasonably without cause to believe that the property
was subject to forfeiture.

183
Congress, as expressed in the House Judiciary

Committee report, sought to make two exceptions to this narrow definition:
where the owner acquired the interest through probate or inheritance and, at the
time of acquisition, was reasonably without cause to believe that the property

was subject to forfeiture, and where the owner is the spouse or minor child and
the property is used as a primary residence, but the spouse or minor child must

have been reasonably without cause to believe that the property was subject to

forfeiture at the time the interest was acquired.
184

The final, duly enacted version ofthe Reform Act, in an effort to make these
intentions a reality, therefore provides:

(3XA) With respect to a property interest acquired after the conduct
giving rise to the forfeiture has taken place, the term "innocent owner"

means a person who, at the time that person acquired the interest in the
property

—

(i) was a bona fide purchaser or seller for value . . . and

(ii) did not know and was reasonably without cause to believe that
the property was subject to forfeiture.

(B) An otherwise valid claim under subparagraph (A) shall not be denied
on the ground that the claimant gave nothing ofvalue in exchange for the
property if-

(i) the property is the primary residence of the claimant;

(ii) depriving the claimant of the property would deprive the

claimant of the means to maintain reasonable shelter in the

community for the claimant and all dependents residing with the

claimant;

(iii) the property is not, and is not traceable to, the proceeds of any

criminal offense; and

(iv) the claimant acquired his or her interest in the property through

marriage, divorce, or legal separation, or the claimant was the

the government on the occurrence of the illegal acts subjecting the property to the

forfeiture—thereby making it impossible to transfer the property even to a bona fide purchaser for
value without notice).

183. Civil Asset Forfeiture Reform Act of2000, Pub. L. No. 106-185, §2, 114 Stat. 202, 206

(2000) (codified as amended at 18 U.S.C. § 983(d)(3)(A) (2000)).

184. H.R. REP. NO. 106-192, at 16 (2000).



1082 INDIANA LAW REVIEW [Vol. 35:1045

spouse or legal dependent of a person whose death resulted in the
transfer of the property to the claimant through inheritance or

probate . . .
,85

These changes, embodied in the newly enacted § 983(d)(3), go too far
because subsection (3)(B) will be interpreted as a list of elements that require

that the property not be, and not be "traceable to, the proceeds of any criminal

offense."
186

In fact, the Ninth Circuit has already interpreted this provision in

such a manner. In United States v. Hooper™1 the claimants were the spouses of
two men who pled guilty to federal narcotics offenses. The spouses alleged that
they innocently acquired community property rights in certain assets that were
to be forfeited to the federal government because the assets were admittedly used

to facilitate narcotics activity or were the proceeds of that activity; the property

included vehicles, cash, and a business.
188

The Ninth Circuit noted that, even if
it applied,

189
the newly enacted Reform Act would not save the spouses' property

because the primary residence could be retained only if it was "not, and is not
traceable to, the proceeds of any criminal offense."

190

This innocent owner defense was supposed to allow heirs, spouses, and
minor children who "were reasonably without cause to believe that the property
was subject to forfeiture"

191
to redeem property whether or not the property was

the proceeds of any criminal offense or is traceable to the proceeds of any

criminal offense. However, by writing the statute as it did, Congress made it
impossible to protect precisely the three types oftransferees (heirs, spouses, and

minor children) it originally expressed an interest in protecting. Subsection (B)

1 85. 18 U.S.C. § 983(d)(3) (2002). Subsection 983(d)(3) suffers from a number ofproblems.

This subsection makes an effort to solve the post-illegal act transferee problem, but likely goes too

far. These problems become clear when one imagines a scenario where a court attempts to decide

whether property is subject to forfeiture when the former spouse's property (a car, house, and

retirement funds) are the proceeds ofcriminal activities but were awarded to him or her in divorce

proceedings.

186. Id. at § 983(d)(3)(B)(iii).

1 87. 229 F.3d 8 1 8 (9th Cir. 2000).

188. Id.

1 89. The Civil Asset Forfeiture Reform Act did not apply because this civil forfeiture case

began before the Act became effective in August 2000.

1 90. Hooper, 229 F.3d at 223. See Stefan D. Cassella, The Uniform Innocent Owner Defense

to Civil Asset Forfeiture: The Civil Asset Forfeiture Reform Act of 2000 Creates a Uniform

Innocent Owner Defense to Most Civil Forfeiture Cases Filed by the Federal Government, 89 Ky.

L.J. 653, 703 (2001) (Cassella, the Assistant Chief ofthe Asset Forfeiture and Money Laundering

Section ofthe U.S. Department ofJustice and principal drafter ofthe Department ofJustice's asset

forfeiture proposals, notes that the government objected to any exception for heirs and spouses and

that the final provision was a compromise that forces the claimant to prove each element).

191. The whole point, after all, ofestablishing an innocent owner defense is that the property

is not subject to forfeiture even if it was involved in the offense or was the proceeds of a criminal

offense.



2002] RESTORING CIVILITY 1 083

works to remove the protection since the language plainly reads as a list of

elements, one ofwhich requires that "the property is not, and is not traceable to,

the proceeds of any criminal offense."'
92

Thus, under the newly enacted §
983(d)(3), heirs, spouses, and minor children essentially have protection from

forfeiture only when the government made a mistake and the property really was
not the proceeds of, or traceable to, a criminal offense, in which case, there is

little point to providing the defense since the property would not be subject to

forfeiture at all. Section 983(d)(3)(B)(iii) therefore nullifies the protections

subsection (B) sought to add and makes them meaningless. The vast majority of
the problems could, however, be solved by deleting § 983(d)(3)(B)(iii) and

inserting "who was reasonably without cause to believe that the property was
subject to forfeiture at the time he or she acquired his or her interest" after

"claimant" in § 983(d)(3)(B).

With this correction to the statutory language, those innocent owners (heirs,

spouses, and minor children) originally destined for protection under the Reform

Act would receive that protection. According these persons protection from civil
forfeiture helps to make the forfeiture laws more precise and keeps the laws from
being overbroad. With regard to heirs, there is little danger of heirs being

involved since the statute already provides that these individuals cannot keep the

property ifthey knew or could have known the property was subject to forfeiture.
Human nature and logic also protect the government's interest because, as the
Judiciary Committee pointed out, there is relatively little danger of criminals

committing suicide in order to protect property or other ill-gotten gains.
193

With

regard to spouses and minor children, the statute protects against their

involvement since they cannot protect property ifthey knew or reasonably should
have known the property was subject to forfeiture. To remove these protections
and permit the government to take the homes in which spouses and minor
children live would do relatively little to further the government's efforts to

combat criminal drug activity
194

and it would, as the Supreme Court noted in
Calero-Toledo, "be difficult to conclude that forfeiture served legitimate

purposes and was not unduly oppressive."
195

Conclusion

This Note has examined this nation's civil forfeiture laws prior to the Civil

192. Civil Asset Forfeiture Reform Act of2000, Pub. L. No. 106-1 85, §2, 114 Stat. 202,206

(2000) (codified as amended at 18 U.S.C. § 983(a)(3)(B)(iii) (2000)).

193. H.R.REP.NO. 106-192, at 16(1999). Butsee United States v. 221 DanaAve.,261 F.3d

65 (1 st Cir. 2001). In 221 Dana Ave., the husband committed suicide shortly after being arrested

and drafting a will that left to his wife the property he had been using to distribute narcotics. The

parties admitted that the wife learned of these activities only after her husband was arrested.

Nevertheless, the point remains that once the wrongdoer commits suicide she is unable to enjoy the

fruits of the criminal activity and little is gained by punishing the innocent family members.

194. 416 U.S. 663 (1974).

195. Id. at 690.



1084 INDIANA LAW REVIEW [Vol. 35:1045

Asset Forfeiture Reform Act and has examined the reforms made by the Act.
The Reform Act makes a number of important changes by providing greater
procedural norms, representation for indigent property owners, and a common
and clarified innocent owner defense for all civil forfeiture cases. Ultimately,
however, the Reform Act fails to fully solve three problems presently inherent
in the civil forfeiture laws.

First, the Act fails to completely equalize the burdens of proof required by
the government and innocent owners. Although the government's burden of

proof has been raised, the fact that the property owner is required to completely
negate the government's allegations means that he or she must, in reality, meet
a much higher standard. Therefore, the government's burden ofproofshould, as
the House Judiciary Committee noted, be raised to the clear and convincing
standard. This standard not only redresses the inequities inherent in the current

burdens of proof but also takes into account the fact that civil forfeiture is a

quasi-criminal action in which the government is essentially alleging a crime was
committed. The government should be held to a high burden of proof.

Next, the Reform Act fails to adopt the proper inquiry under the Excessive
Fines Clause and instead only uses a proportionality inquiry. In civil forfeiture

proceedings under § 881(a), proportionality is not enough because the

proceedings are not merely punitive; they are also remedial and preventative.

Where forfeitures are explicitly aimed at the instrumentalities ofthe crime in an
effort to prevent future crimes, and where the forfeiture is aimed at the

instrumentalities or proceeds ofthe crime in an effort to remedy the wrongs, an
instrumentality inquiry is necessary. In such a case, a forfeiture could be

excessive either because it is grossly disproportionate, or because there is little

or no nexus between the offense and the property—a two-pronged inquiry is
therefore necessary.

Finally, in an effort to solve the post-illegal act transferee problem, the act

makes it impossible for heirs, spouses, and minor children to protect their
property. As written, the act makes the defenses intended to help heirs\ spouses,
and minor children pointless. These provisions should be rewritten to put into

place the defenses that would protect this group of post- illegal act transferees.

Taking property from this group does relatively little to further the "war on
drugs" and is "unduly oppressive."