united-states constitutional-law search-and-seizure fifth-amendment due-process
Why hasn&#39;t civil asset forfeiture been ruled unconstitutional?
<p>If news articles like <a href="http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/?utm_term=.c2de164c698c" rel="noreferrer">this</a> and <a href="https://www.washingtonpost.com/news/wonk/wp/2017/03/29/since-2007-the-dea-has-taken-3-2-billion-in-cash-from-people-not-charged-with-a-crime/?utm_term=.1f77b48ef105" rel="noreferrer">this</a> are accurate, then U.S. law enforcement can confiscate private property, including cash, without convicting someone of a crime – or even charging them – under a theory called "civil asset forfeiture."</p>

<p>The Constitution (5th and 14th amendments) clearly states that no one shall be deprived of life, liberty, <em>or property</em> without due process of law.</p>

<p>This is clearly depriving citizens of property, and there appears to be no due process, so how has civil asset forfeiture survived challenges in the courts? <em>That is, why isn't this a violation of the 14th and 5th amendments</em>? (Last sentence added and italiziced to distinguish from other question <a href="https://law.stackexchange.com/questions/887/how-exactly-does-civil-asset-forfeiture-work-in-the-united-states">How exactly does civil asset forfeiture work in the United States?</a>)</p>

<p>Civil forfeiture typically pits the government against property, not the government against an individual, and in the US (also anywhere else), only people have rights: property has no rights. The first relevant instance to reach the Supreme Court was an early case, <a href="https://supreme.justia.com/cases/federal/us/25/1/case.html" rel="noreferrer">The Palmyra</a> (25 US 1), where a ship was confiscated because it had been used in privateering against the US. Although the owner had been convicted of nothing, the court still allowed the confiscation since</p>

<blockquote>
  <p>The thing is here primarily considered as the offender, or rather the
  offense is attached primarily to the thing, and this whether the
  offense be malum prohibitum or malum in se</p>
</blockquote>

<p>The defendant here is the ship itself, not the owner of the ship (known as <em>in rem</em> proceeding). The case law is replete with cases like "US v. $500,000", and such forfeitures have long been part of the arsenal to be used against wrong-doing, a law authorizing this having been one of the first acts of the US Congress, especially applicable to ships and cargo involved in piracy. The courts have repeatedly allowed such confiscation, at least in certain circumstances.</p>

<p>In one more recent case, <a href="https://www.law.cornell.edu/supremecourt/text/272/465" rel="noreferrer">Van Oster v. Kansas</a>, 272 U.S. 465, the court stated that</p>

<blockquote>
  <p>It has long been settled that statutory forfeitures of property
  intrusted by the innocent owner or lienor to another who uses it in
  violation of the revenue laws of the United States is not a violation
  of the due process clause of the Fifth Amendment</p>
</blockquote>

<p>followed by a huge list of citations. Because of the doctrine <em>stare decisis</em> (courts respect prior rulings in similar cases), once a pattern is deemed constitutionally acceptable, it is very hard change that interpretation of the law.</p>

<p>It should be noted that J. Thomas <a href="https://www.supremecourt.gov/orders/courtorders/030617zor_6j37.pdf#page=16" rel="noreferrer">recently hinted</a> in a dissent that there is a Due Process problem with civil forfeiture, raising strict scrutiny type objections to civil forfeiture, specifically that forfeiture was typically more narrowly applied – limited to customs and piracy, and </p>

<blockquote>
  <p>justified by necessity, because the party responsible  for  the  crime
  was  frequently  located  overseas  and  thus  beyond  the  personal 
  jurisdiction  of  United  States  courts</p>
</blockquote>

<p>also observing that</p>

<blockquote>
  <p>founding-era  precedents  do  not  support  the  use  of  forfeiture 
  against  purely  domestic  offenses  where  the  owner  is   plainly 
  within  the  personal  jurisdiction  of  both  state  and   federal 
  courts</p>
</blockquote>

<p>Essentially, the reason why civil forfeiture (in its current revenue-generating incarnation) hasn't been ruled unconstitutional is that a persuasive argument has not been made to that effect. The court can't just decide this on its own, and in the most recent case, the constitutional issue was only raised at the Supreme Court, not in the Texas appellate court where it should have been raised. </p>

<p>The most significant problem is that it isn't clear what constitutes "due process of law". There is, in all jurisdictions, some kind of legal process (see <a href="http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf" rel="noreferrer">this report</a> for an overview of the kinds of process involved). The standard of proof that allows forfeiture is pretty low (being a civil case, it is not "beyond a reasonable doubt"), and there are various impediments discouraging anyone from suing to prevent forfeiture (which until 2000 included a substantial bond requirement and the threat of having to pay the government's attorney's fees if you lose). Since there <em>is</em> a process whereby forfeiture can be challenged, a more sophisticated argument is needed, based on Due Process.</p>
