Match Dawson (St. Mary’s University – School of Law) has posted Forgotten Forfeiture (Cornell Law Review, forthcoming) on SSRN. Here is the abstract:
For half a century, the Supreme Court has answered constitutional challenges to civil forfeiture with a history lesson: it is well established that the First Congress seized ships and cargoes, so, as the argument goes, modern forfeiture practice justifiably stands on Founding-era footing. This Article shows that the Court has been reading only half of that lesson. The First Congress that wrote the early forfeiture statutes built corrective measures within them. Under the Remission Act of 1790, an owner who acted “without wil[l]ful negligence, or any intention of fraud” could petition the Treasury Secretary for return of their forfeited property. Hamilton and his successors granted relief in more than ninety percent of cases—a record recovered from unpublished archives by Professor Arlyck, who closed his study by suggesting such a consistent historical practice might carry constitutional weight. It does, and this Article supplies the answer he left open.
A few years earlier, Professor Nelson asked whether history validates forfeiture’s existence; the question here is whether that same history constitutionally settled forfeiture’s limits. Applying Professor Baude’s account of constitutional liquidation, this Article shows that years of deliberate, reasoned, and publicly ratified remission practice fixed the meaning of “due process” and “excessive fines” as applied to forfeiture—and fixed it as a constraint, not as an absolute power. Where prior scholarship rested on legislative and electoral practice, this Article rests on remission instead.
Liquidation imposed three tenets: protection for owners innocent of wrongdoing; penalties proportioned to culpability and hardship; and disinterested oversight empowered to undo an overreaching seizure. Modern law inverts each while claiming the Founders’ sanction for the inversion. Today, civil forfeiture has taken in at least $82 billion since 2000, and the agencies that seize are the agencies that keep—proceeds flow to the Department of Justice’s Assets Forfeiture Fund and, through equitable sharing, back to the very departments that made the seizures, so that enforcement budgets are built in part from the property enforcement takes. Seventy-one percent of the Department’s revenue-producing forfeitures are now decided administratively without a judge, while owners—who are never charged with a crime—bear the burden of proving their own innocence.
There is a clear path forward. Bennis v. Michigan, decided without any examination of the remission practice that qualified the precedents it relied on, should be overruled. Bajakajian’s excessiveness standard, which almost no forfeiture has ever failed, should give way to the review the Treasury Secretaries actually practiced. And a regime that pays for itself out of the property it takes is the inherently suspect arrangement the disinterested officer existed to prevent. Five Justices across the Court’s ideological spectrum have asked whether modern forfeiture can be squared with the Constitution, and with certiorari granted in Jouppi v. Alaska, the question is live and the record—when fully read—answers by showing the history that has shielded forfeiture is the strongest case for constraining it.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum