Forfeiture is a tool used by law enforcement agencies to confiscate money or property they suspect is involved in illegal activity. Forfeiture has a long history in the United States and other parts of the world, but for most of its existence, its use was limited. Widespread use of civil forfeiture began with the rise of modern drug laws and more permissive court interpretations of what constitutes a connection to illegal activities.
There are three main types of property that are subject to forfeiture: contraband, proceeds from criminal activity and tools used in the act of committing a crime. Contraband is property that is illegal to own, such as illicit drugs or certain types of weapons. Proceeds are typically goods or money derived from illegal activities, such as cash stolen from a bank. Tools are items used during the commission of a crime and “associated” with illegal activity, such as a legally owned gun used to rob a convenience store.
Forfeiture is not the same thing as law enforcement seizing property. Police can seize property if they have probable cause to believe that the property is subject to forfeiture or if the property is needed as evidence as part of a criminal investigation. Seizure is when the police take possession of property; forfeiture is when the government takes ownership of property.
There are two main types of forfeiture: civil and criminal, both of which are described in more detail below. It is important to distinguish between civil and criminal forfeiture and to remember that this paper discusses only the problems associated with civil forfeiture, not criminal forfeiture or police seizure. Further, reforming civil forfeiture would not affect the ability of police to seize property that is needed as evidence in a criminal case.