FORFEITURE ACTIONS

Question 1

INTRODUCTION

Answer 1

• Actions for forfeiture are brought directly against property & are generally regarded as quasi-criminal in nature.
• Certain constitutional rights may exist for those persons whose interest in property would be lost by forfeiture.

Question 2

RIGHT TO PRE-SEIZURE NOTICE AND
HEARING

Answer 2

• The owner of personal property (and others with an interest in it) is not constitutionally entitled to notice and a hearing b/f property is seized for purposes of a forfeiture proceeding.
• A hearing is, however, required before final
  forfeiture of the property.
• Where real property is seized, notice and an opportunity to be heard is required b/f seizure of real property unless the government can prove
  that exigent circumstances justify immediate seizure.

Question 3

MAY BE SUBJECT TO EIGHTH AMENDMENT: General Rule

Answer 3

• SC has held that the Excessive Fines Clause
  of 8th am applies only to fines imposed as
  punishment; it does not apply to civil fines.
• Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not.

Question 4

Penal Forfeitures

Answer 4

• If a forfeiture is penal & the Clause applies, the forfeiture will not be “excessive” unless grossly disproportionate to the gravity of the offense (ex. forfeiture of $357,144 was found disproportionate to the crime of failing to report that that sum of money was being transported out of the country).

Question 5

Civil In Rem Forfeitures

Answer 5

• Civil in rem forfeitures generally are not subject to the Excessive Fines Clause.
• However, forfeitures made under the federal drug forfeiture statute are penal and therefore are subject to the Clause.

Question 6

Monetary Forfeitures

Answer 6

• Monetary forfeitures (ex. forfeiture of twice the
  value of illegally imported goods) brought in civil actions generally are not subject to 8th am

Question 7

PROTECTION FOR “INNOCENT OWNER”
NOT REQUIRED

Answer 7

• DPC does not require forfeiture statutes to provide an “innocent owner” defense (ex. a
  defense that owner took all reasonable steps to avoid having the property used by another for illegal purposes), at least where the innocent owner voluntarily entrusted the property to the wrongdoer.