Possible Good News on Reform of Civil Forfeiture?

Jeffrey Miron

US Supreme Court justices, 2023

A recent Supreme Court ruling on civil forfeiture, while seemingly a setback for critics of the practice, nevertheless contains some good news. 

Civil forfeiture occurs when police seize property they suspect was involved in or obtained through crime. The owner must then prove the property’s innocence to reclaim it.

States must ordinarily provide notice and a hearing before seizing property. If the property in question could otherwise be removed, destroyed, or concealed before a hearing, however, police can seize it without these steps. 

Civil forfeiture started during the colonial years under British maritime law. If a ship owner violated custom laws, enforcement could seize ships and cargo even if the owner was difficult to capture.

Forfeiture has expanded dramatically as a weapon in the War on Drugs (similarly to the Prohibition era). One crucial development has been that law enforcement agencies can often keep the proceeds from auctioning seized property, which creates an incentive to seize more property and complicate the retrieval processes. This seems likely to distort balanced enforcement of laws and is inconsistent with the presumption of innocence.

In a recent case about civil forfeiture, the Supreme Court ruled against two women in Alabama:

Halima Culley bought a 2015 Nissan Altima for her son to use at college. He was pulled over by the police in 2019 and arrested when they found marijuana. They also seized Ms. Culley’s car. That same year, Lena Sutton lent her 2012 Chevrolet Sonic to a friend. He was stopped for speeding and arrested after the police found methamphetamine. Ms. Sutton’s car was also seized.

Both women eventually convinced the courts to return their cars, but their cases took over a year. Culley and Sutton filed suit in federal court, arguing that, in the interest of “timely resolution,” civil forfeiture should allow property owners to prove “innocent ownership” in a preliminary hearing, before cases moved forwards. 

The court ruled 6–3 that while due process requires timely resolution, it does not always require a separate preliminary hearing. This is disappointing for critics of civil forfeiture, since defining and enforcing “timeliness” is messy (although the same could be true of preliminary hearings). 

The good news is that five justices expressed serious reservations about current practices.

Justices Gorsuch and Thomas, although agreeing that preliminary hearings should not be required, emphasized the abusive practices of today’s civil forfeiture:

[T]his promise [the Fifth and Fourteenth Amendments] usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof. […] So how is it that, in civil forfeiture, the government may confiscate property first and provide process later?

Justice Sotomayor, joined by Justices Kagan and Jackson, criticized the perverse incentives for officers to hold on to seized property.

A crucial step in reducing the negatives of civil forfeiture is repeal of drug prohibition. Then, police would have far fewer occasions to claim that property was involved in a crime.

With or without legalization, civil forfeiture would also be less onerous and more consistent with due process if: 

  • The government required a criminal conviction before seizing assets.

  • The government had the burden of proof.

  • Forfeited property went to the federal treasury rather than the police, to remove corrupt incentives.

Here’s hoping a future case leads to such changes.

Lemoni Matsumoto, an undergraduate at the University of Chicago, contributed to this article.