D. The Modern Forfeiture Regime: 1970-Present

Civil forfeiture doctrine has proceeded on the same rationale developed in the early periods of American history and expanded during the Civil War. It has, moreover, been extended to an unprecedented number of illegal activities—activities whose criminality is often based on the perceived need to address some pressing social concern or crisis. Arguments of an environmental crisis, public health and safety crises, and the crisis of drugs have increased the power of government to regulate or criminalize a vast number of individual activities and choices.

Specifically in relation to drug forfeitures, the scope of the laws has gradually been broadened over the past 25 years. The primary justification for the extension of forfeiture into the realm of drugs is one of deterrence. Legislators believe that imprisonment for drug traffickers is often treated as a mere "cost of business" and, therefore, is not an effective deterrent against such action. Forfeiture laws therefore attempt to remove the financial profit from drug trafficking by seizing the fruits or proceeds of drug transactions. Reaching the pocketbooks of drug traffickers is a far more effective deterrent, according to this line of reasoning.

Even accepting this as a legitimate goal, it fails to justify either the scope of the forfeiture law’s application or the limited procedural safeguards involved in forfeiture proceedings. Criminal forfeiture, allowing the seizure of drug proceeds after a finding of criminal guilt, could certainly accomplish this task of deterrence as stated. Furthermore, whether operating in the criminal or civil realm, matters of enforcement efficiency are never a valid justification for violating principles of fairness or private property rights. We live in a country founded upon values which favor the autonomy of the individual over the efficiency of the state. The growth of forfeiture statutes in the shadow of the drug war has lost sight of that individual-state relationship.

In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act containing the basic federal anti-drug civil asset forfeiture provisions. This original version allowed for forfeiture of property used in connection with controlled substances. In 1978, forfeiture of money and other things of value furnished or intended to be furnished in a drug exchange was authorized. In 1984, the law was amended to include all real property used or intended to be used in a drug exchange and all proceeds traceable to a drug exchange. Several other statutes intended to fight the drug war extended forfeiture power to money laundering, counterfeiting, and various other offenses.

During the 1980s, the fight against drugs was elevated to a "war." Intervention and interdiction abroad influenced the nature of the domestic war. Statements about the crisis and the need for drastic measures to fight the war were used to justify the increased attack.

In 1992, an increase in the federal government’s forfeiture power occurred when a law was adopted completely eliminating any requirement that the actual property seized be "tainted" by a connection to a crime. The statute allows the government to seize any property identical to the property involved in the offense if it can be found in the same place or same account. Thus, identification and connection are no longer required under certain statutes.

In 1970, the government’s reach of power further increased when legislators added a criminal forfeiture layer to the federal law enforcement scheme. Congress enacted the federal criminal statute known as the Racketeer Influenced and Corrupt Organizations Act (RICO), which includes broad criminal forfeiture provisions. As previously discussed, criminal forfeiture laws are in personam and punitive, thus affording the protections available to criminal defendants. Property may be subject to forfeiture under these laws regardless of taint and irrespective of the property’s guilt. Legitimately acquired assets unconnected to criminal activity may be forfeited as punishment for a conviction. Since RICO, several additional statutes have been passed to provide for forfeitures of assets upon criminal convictions.