Forfeiture

Question 1

What is nature of an action for forfeiture brought directly against property?

Answer 1

quasi-criminal (persons with property interests retain certain constitutional rights)

Question 2

What rights are afforded the owners of personal property subject to forfeiture action?

Answer 2

no right to notice and hearing prior to initial seizure, but hearing is required prior to final forfeiture

Question 3

What rights are afforded the owners of real property subject to forfeiture action?

Answer 3

Notice and opportunity to be heard required prior to initial seizure unless the government can show exigent circumstances

Question 4

What is the application of the 8A to forfeiture actions?

Answer 4

The excessive fines clause applies to fines imposed as punishment – penal forfeitures subject to 8A but not civil forfeitures (unless made under federal drug forfeiture statute)

Penal forfeitures will not be excessive unless grossly disproportionate to gravity of the offense

Question 5

Is there an innocent owner defense to a forfeiture action?

Answer 5

No, at least where the owner voluntarily entrusted the property to the wrongdoer