The Federalist Society

Forfeiting Reason: Addendum

January 1, 1998

Roger Pilon

In response to Stefan Cassella's "Forfeiture Is Reasonable, and It Works," which is a lengthy criticism of my essay above ["Forfeiting Reason," Criminal Law and Procedure News, Vol. 1, No. 2, Fall 1997], I should note first that my essay was written as a critical review of the three forfeiture opinions the Supreme Court handed down in its 1995 Term, not as a general critique of forfeiture law. (For that, see my "Can American Asset Forfeiture Law Be Justified?" 49 New York Law School Law Review 311 (1994).) Nevertheless, Mr. Cassella presents a general defense of forfeiture, using as his foil certain points I only mention above. Thus, I appreciate this opportunity to expand upon those points.

An "informed debate" is welcome, Mr. Cassella tells us, but not one "muddled by the misconceptions and plain old-fashioned misstatements that seem to pop up in every article critical of asset forfeiture," of which mine, "containing the usual parade of horribles, is a good example." (Sensitivity to criticism aside, "every" article?) "Greatly mistaken," "preposterous," "just plain wrong"--in the interest of injecting "a little truth and understanding into the debate," Mr. Cassella takes off the gloves. I am fortunate to be able to keep mine on as Mr. Cassella's arguments, once exposed, will do the work for me.


In a free society, government power--especially the power to seize private property for forfeiture to the government--is not a given. It must be justified. Yet nothing is so clear in Mr. Cassella's essay as that he hasn't a clue about the business of justification. Thinking like the government agent he is, his only concern is with forfeiture's use as a "tool" in the war on crime--and in the endless war on drugs, in particular. From beginning to end his argument is pragmatic. Look at his title. It is as if the idea that what he is doing (or proposing) needs to be justified in anything more than a crude utilitarian way never crossed his mind. Indeed, because he does not go to the root of the matter--to the theory of forfeiture--his argument turns upon itself in the end, as we shall see, its author oblivious to that result.

No one doubts that forfeiture is a useful tool against crime. Over the years, the rack, the thumbscrew, and the police state too have proven useful to that end. Usefulness aside, what disturbs so many about forfeiture is its implications for the rights of the innocent and the guilty alike. When forfeiture is used to confiscate the property of innocent people, to deny due process to both the innocent and the guilty, and to impose disproportionate sanctions on the guilty, one wants to know what, if anything, justifies it.

As a stab at that question--a mere stab--Mr. Cassella lists six "rationales" for forfeiture: to seize contraband, to abate nuisances, to take the instrumentalities of crime, to take the profit out of crime and return property to victims, deterrence, and punishment. Presumably, the justificatory force of those reasons is something close to "self-evident" for him, for he presents them with little dressing.

To be sure, two of the rationales may be close to self-evident. On the assumption that "contraband" makes sense in a free society--and even then, not everything on Mr. Cassella's list should be there--government forfeiture would seem to follow. Similarly, the return, through forfeiture, of ill-gotten goods--properly defined and with sufficient due process--presents little problem for the rights of owners--in fact, it enhances them.

But nuisance abatement through forfeiture? Ordinarily we don't take property for that purpose; we simply enjoin the offensive use, leaving the property with its owner, to use in some other way. As for "instrumentalities"--forfeiture's notorious "facilitation" doctrine--this boundless rationale is the source today of most of the outrage. Far from self-evident, it cries out for justification. And it does so especially when combined with the deterrence and punishment rationales. Those rationales have never been part of forfeiture's justification in principle, as the Court has repeatedly said--then denied in a logical pirouette that makes "little sense," as Justice Stevens rightly put it.

Indeed, to recur to Bennis above, what was the point of taking Mrs. Bennis's half-interest in her car? To deter her? From what? To punish her? For what? The gap from the premise that a car, plane, ranch, hotel, or ocean liner "facilitates" a crime to the conclusion that it is, therefore, forfeitable to the government is fairly yawning, not self-evident, and no argument from utility will bridge it--not, that is, if we're serious about justification.

Rather than address that problem directly, however, Mr. Cassella gleans from my essay a "parade of horribles." "We are told," he says, (a) "that forfeiture is based on an absurd legal 'fiction' that the property is guilty of the crime, which means that property can be forfeited without proof that a crime was committed by a real live person;" (b) "that the government can seize property 'almost at will,' i.e., without due process, and that innocent people find the process so unfair that they walk away from their property without filing claims;" and (c) "that even when they do file claims, innocent owners just don't have any rights." Let's look closely to see whether Mr. Cassella has stated my objections correctly and whether his answers hold up.

An Absurd Legal "Fiction"?

Mr. Cassella tells us, as if we needed instruction on the point, that "property doesn't commit crimes; people do." Just so. But why then file an action against the property? Ignoring the in rem history of forfeiture, Mr. Cassella would have us believe that "the legal 'fiction' that the property is 'guilty' of the crime is simply a shorthand for the way a civil forfeiture case is styled." Really? You mean that all these years, through "a long and unbroken line of cases...too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced," as the Bennis Court put it, we've been wrong in believing that "the thing is here primarily considered as the offender"?

On one point, of course, Mr. Cassella is right: the fiction is an absurdity. But it's not a mere point of "style." It's the law. And Mr. Cassella himself is not above resorting to that law when it serves his purpose. Thus, he asks, "If all forfeitures involve the commission of a crime, and the vast majority involve an arrest or prosecution, why does the government do civil forfeiture at all?" Why not just do criminal forfeiture by including a forfeiture count in a criminal indictment? Why not?

The "most important" reason, he says, is because "criminal forfeiture is limited to the property of the defendant. If the defendant uses someone else's property to commit the crime, criminal forfeiture accomplishes nothing [for the government]. Only civil forfeiture will reach the property." (original emphasis) That is a striking admission. Indeed, notice precisely what Mr. Cassella is saying here. Proceeding "normally," against the accused--remember, only people commit crimes -- we can't reach the property of someone else. What a surprise! People get to keep their property unless they've done something to lose it. That's what we call the rule of law. Mr. Cassella, however, wants to get around that rule: "if a drug dealer uses an airplane to smuggle drugs into California, the government has an interest in seizing and forfeiting the plane," even if it belongs to someone else. Why? If A violates the law, why take B's property? Because the property "facilitates" the crime? We're right back where we started from --needing to justify the facilitation doctrine.

In fact, it is here, precisely, that Mr. Cassella's argument turns upon itself. He wants, rightly, to abandon the absurd "fiction" that the property is guilty. But he can't, because then he would have no reason--no justification -- for seizing property that belongs to someone accused of no crime. Yet if he resorts to the facilitation doctrine -- the very doctrine that needs to be justified, not assumed--then he's right back with the legal fiction that has always been thought to underpin the doctrine.

Mr. Cassella's argument, in short, is circular. At least the standard rationale for the facilitation doctrine makes a stab at justification by invoking the legal fiction that property that facilitates crime is "guilty"--however absurd that fiction may be. Mr. Cassella's approach abandons that fiction. But the price of doing so is to reveal facilitation forfeiture for the naked power it always was and still is: "A used B's plane to commit a crime; whether or not we prosecute A, we want B's plane." Why punish B? "We're not punishing B since the action is brought against the property, not B." And on and on, in a vicious circle of argument that no one any longer believes, if ever anyone did, even if the Court continues to parrot the rhetoric.

My point in raising the absurd "fiction" in the essay above, then, was not to defend it --far from it -- but to shine light on the equally absurd facilitation doctrine it purports to support. That the facilitation doctrine rests on a house of cards in nowhere more evident than in the Court's strained efforts to apply it, as outlined above under "Disquieting Implications." Under the doctrine the Court has allowed the seizure of boats and even yachts. But ocean liners? "When such application shall be made it will be time enough to pronounce upon it," Chief Justice Rehnquist says. So much for the rule of law.

Due Process?

Once the absurdity of the facilitation doctrine is exposed, those who want to salvage it invariably turn their attention to something the otherwise innocent owner may have done, some "guilt" of his, even though, strictly speaking, that is irrelevant to the doctrine--and efforts to address the question fit uneasily into in rem proceedings. But historically, a concern for innocent owners has come only very recently, through statute, where it has come at all. Before turning to those spotty statutory developments, however, we need to take up the disturbing procedural issues that Mr. Cassella has conflated in each of his three restatements of my objections to forfeiture.

He is right to say, of course, that property cannot be seized, exigent circumstances aside, "without proof that a crime was committed by a real live person." But that statement about "proof" overstates the matter by a wide margin, as we shall see. Moreover, as counterpoint, it misstates what I said. I never said that under current law no proof of any kind is required to seize property. Nor did I say that government's power to seize property "almost at will" meant "without due process"; it was not for nothing that I used the word "almost." Finally, Mr. Cassella has me saying that "officials can 'seize property, real of personal, without notice or hearing'"--leaving off the rest of the sentence, "upon an ex parte showing of mere probable cause to believe that the property has somehow been 'involved' in a crime."

Clearly, the issue here is not whether there is any process in a typical forfeiture action, but just how much and what kind of process should be due. More deeply, however, it is also whether, given the substantive law, process even matters--a point Mr. Cassella seems not to have grasped. To read him, one would think that the process now afforded defendants and nondefendants alike is just about right; yet we know that at every step of the way the Department has fought both procedural and substantive changes in forfeiture law. Against me, for example, Mr. Cassella cites the 1993 Daniel Good case, which requires that owners be given notice and an opportunity to be heard before real property can be seized; what he fails to note is that the Department argued against that result all the way to the Supreme Court.

To put the procedural and substantive concerns together in a single question, how could it be right--as it is today in many states and still is under some federal statutes--to seize a person's property through an ex parte proceeding at which the standard of proof is mere "probable cause" about the property's "involvement" in a crime--and afford that person no ground for subsequently reclaiming his property? To be sure, there is a "process"--ex parte

--and it does require "proof"--at the lowest possible level, and not necessarily about anything the owner may have done. In a free society, however, it is hardly the process and the proof we should think sufficient to seize a person's property.

Mr. Cassella attempts to assure us, of course, that the owner can always contest a seizure. But that is not the case where no innocent owner defense is available. That was the whole point above, in my discussion of Bennis. Mr. Cassella has me making "a persuasive argument that the Constitution does not adequately protect innocent owners in civil forfeiture cases." I make no such argument. In fact, in my view the Constitution does protect innocent owners like Mrs. Bennis through a properly read Fourteenth Amendment (both the Privileges and Immunities and the Due Process Clauses), which would negate the facilitation doctrine. But that's not the point here. Rather, the point is that, given the facilitation doctrine, and the absence of an innocent owner defense, no process in the world could have saved Mrs. Bennis: however innocent she may have been, her property did, after all, "facilitate" the crime.

Innocent Owners and Due Process

Given the substantive law, then, the sufficiency of any process that may be available is not the issue if no innocent owner defense is available: for whatever the process, there's nothing for owners to prove through it; we're back to the fiction; the property is guilty. But even when an innocent owner defense is available, both the substantive and the procedural law make it an uphill battle for owners to reclaim their property once the government has seized it.

There are two reasons for this. First, the standard innocent owner defense places the burden of proof on the owner, not on the government, and the standard is high: the owner must prove, not by a probable cause standard but by a preponderance of the evidence, that he neither consented to the use to which his property was put nor knew about its use. Mr. Cassella makes light of this burden of proving a negative. Yet in response to my claim that "hotels and apartment buildings are today forfeited when their owners are unable to prevent drug transactions in them ," which he says "is just plain wrong," the first case he cites is one in which the owner was unable to carry out his burden. (See also Seth Faison, "In Largest Takeover Under Narcotics Law, U.S. Seizes a Large New York City Hotel," New York Times, June 9, 1994, at A1, B3.)

But in all of this Mr. Cassella has utterly ignored the practical implications of this set up, which brings us to the second reason owners face an uphill battle getting their property back, even when an innocent owner defense is available. Let's be realistic: it's no small matter to go up against a government--federal, state, or local--that has just seized your property, especially if the seizure leaves you penniless, as it sometimes does, and especially if the cost of recovery might exceed the value of the property, as if often does. Is it any wonder that innocent owners often walk away from their losses? Mr. Cassella is simply oblivious to this point.

But there are still other practical impediments for innocent owners, the full measure of which Mr. Cassella himself brings out, without noticing it, in his discussion of the three types of forfeiture--administrative, civil, and criminal. If the owner does not challenge the seizure, Mr. Cassella tells us, his property forfeits to the government in an administrative, "default" proceeding. But if the owner does challenge the seizure, the government can get rough by filing a civil complaint against the property or, even worse, by including a forfeiture count in a criminal indictment. Think about it. "Complain about our seizure of your property and we'll file a civil complaint against it, putting you to the burden of proving your innocence; or perhaps we'll file a criminal indictment against you--however thin the evidence--or both. Why don't you go easy on yourself and just walk away?" Doesn't happen--federal, state, or local? Lord Acton spoke to that matter. So much power in the hands of government, especially where departments literally keep the property, has got to corrupt. As Chairman Henry Hyde's book shows, again and again, it does.

In sum, Mr. Cassella paints a seemingly reasonable picture of a useful "tool" in the war on crime. Closer examination, however, shows forfeiture to be fraught with peril. Originating in this country with the practical problem of reaching distant owners in the customs context, its roots are far more remote than that. It has grown over the years--especially during the era of alcohol prohibition and, today, in the era of drug prohibition--into a weapon not simply against crime but against the rule of law itself. Yet a good part of what we do today through forfeiture can be done through more legitimate, more justifiable means. In the end, forfeiture does not need to be reformed. It needs to be relegated to the dustbin of history from which it came and replaced by sound principles of law. Government needs tools, to be sure, but in a free society they must be legitimate.

*Roger Pilon directs the Cato Institute's Center for Constitutional Studies.

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Forfeiting Reason
Forfeiture Reform
Forfeiture is Reasonable, and It Works

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