The Yale Law Journal

VOLUME
125
2015-2016
NUMBER
8
June 2016
2182-2555
Feature

The Constitutionality of Civil Forfeiture

Caleb Nelson

abstract. Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government’s assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this Feature cautions originalists not to assume that they are unconstitutional. The Feature concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here: the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

author. Emerson G. Spies Distinguished Professor of Law and Elizabeth D. and Richard A. Merrill Professor, University of Virginia School of Law. For helpful comments at various stages, I thank Barry Cushman, Rachel Harmon, John Harrison, and Ann Woolhandler. They are not to blame for my errors.


Introduction

Everyone knows that the law denies people property rights in illegal drugs and other contraband.1 But nonlawyers sometimes are startled to learn that the law also strips people of property rights in everyday items that simply have been used in a prohibited way. For instance, when someone transports illegal drugs in a car, the federal Controlled Substances Act provides that ownership of the car thereby passes to the federal government.2 Many other categories of property, including houses and land as well as personal property, are similarly “subject to forfeiture to the United States” if they are used in connection with drug trafficking or if they are the proceeds of such trafficking.3 In the words of the Controlled Substances Act, “no property right shall exist in [these things]”4 and “[a]ll right, title, and interest in [them] . . . shall vest in the United States upon commission of the act giving rise to forfeiture.”5

To enforce these forfeitures, the government can use a special set of procedures that may startle even lawyers. When the government alleges that personal property has been forfeited under the Controlled Substances Act, the government often can perfect its title without going to court (aside, perhaps, from the ex parte process of getting a warrant to seize the property in the first place).6 The government does have to provide public notice of the seizure and its intention to declare the property’s forfeiture, and the government must also send written notice “to each party who appears to have an interest in the seized article.”7 Any interested person who wants to contest the government’s position can trigger judicial proceedings by filing a claim to the property.8 But that is not always advisable; the relevant judicial proceedings might take the form of a criminal prosecution against the claimant,9 and in any event they might cost the claimant more than the property is worth.10 Whether for those reasons or because the government is usually correct, most forfeitures under the federal drug laws are uncontested.11 And if no one files a claim within a fairly short deadline, the process need go no further: an administrative official can issue a binding declaration of forfeiture, clearing the way for the government to sell the property at auction or retain it for the government’s own use.12

Under current federal law, this method of “administrative forfeiture” is available only for personal property (including cash),13 and only when no one files a claim. But even when the government needs to get the courts involved, the government does not have to proceed in personam against the former owner. Instead, the government often can seek judicial confirmation of its ownership through proceedings in rem against the property itself.14 While claimants have a right to participate in these “civil-forfeiture” proceedings,15 they usually have no right to appointed counsel,16 and they also lack some of the other procedural advantages that would attend a criminal prosecution. For instance, instead of having to prove each element of a criminal offense beyond a reasonable doubt, the government need only prove that the property is subject to forfeiture by a preponderance of the evidence.17

Over the past few decades, these practices have gone through a cycle of expansion and reform. Starting in the 1970s and accelerating in the 1980s, Congress and state legislatures made civil and administrative forfeiture an increasingly prominent tool of law enforcement, first in the war on drugs and then in other areas.18 In the 1990s, critics across the political spectrum19 raised concerns about the plight of innocent owners who were not themselves responsible for the misuse of their property,20 the dangers of letting police departments and other enforcement agencies fund themselves through forfeiture,21 and the need for more procedural safeguards to guard against erroneous or abusive confiscations of property.22 Congress responded to some of these criticisms by enacting the Civil Asset Forfeiture Reform Act of 2000,23 which made targeted changes to federal forfeiture laws.24 More recently, the Department of Justice has been reviewing its asset-forfeiture program, and the Department has announced new restrictions on how it will use a few of the powers that federal law gives it.25 Some state legislatures have gone much farther; nine states require most forfeitures to be predicated on criminal convictions,26 and one of those states no longer authorizes civil forfeiture at all.27 Still, at the federal level and in most states, a great deal of forfeiture continues to occur outside the criminal process.28

Groups ranging from the American Civil Liberties Union29 and the National Association of Criminal Defense Lawyers30 to the Heritage Foundation31 and the Institute for Justice32 are pushing for further legislative reform. Ever since the 1990s, however, some lawyers and scholars have been asking a more basic question: are civil and administrative forfeiture even constitutional?33

This Feature examines evidence bearing on how originalists, in particular, might analyze that question. More precisely, this Feature evaluates the constitutionality of civil and administrative forfeiture from the perspective of the version of originalism that I accept, in which historical research can serve at least two different functions.34 To the extent that particular constitutional provisions have a determinate “original meaning,” historical research may help modern readers identify that meaning.35 But to the extent that the original meaning of the Constitution is indeterminate, historical research can also help establish how those indeterminacies were resolved or “liquidated” over time. As I have discussed elsewhere,36 the concept of “liquidation” was prominent during the Founding era, when the verb “to liquidate” could mean “to render unambiguous.”37 Just as a “liquidated damages” clause in a contract might pick a single number from a range of possibilities,38 so too leading members of the Founding generation anticipated that post-Founding practices or precedents would settle on one of the permissible interpretations of provisions that lent themselves to multiple readings.39 In the absence of “extraordinary and peculiar circumstances,”40 moreover, those liquidations were expected to be permanent; they would fix the Constitution’s meaning on points that could otherwise have been disputed.41

For anyone who accepts the concept of liquidation,42 it seems likely to play a prominent role in debates about civil forfeiture. The constitutional provisions that may be most directly relevant—the prohibitions on depriving people of property “without due process of law”43—are widely thought to be at least somewhat indeterminate.44 As modern courts and commentators well know, moreover, civil forfeiture has an impressive historical pedigree: the practice dates back to colonial America, continued unabated after the Founding, and has not been rejected even today.45

Of course, the facts that myriad early statutes included forfeiture provisions and that courts willingly enforced those provisions through civil proceedings in rem do not automatically prove that civil forfeiture comports with the original meaning of the Constitution. Precisely because civil forfeiture predated the Founding, early legislators and judges may simply have followed familiar practices without appreciating the legal import of the Due Process Clause or other relevant aspects of the Constitution. But to the extent that practice can liquidate the meaning of the Constitution on uncertain points, history tends to validate the constitutionality of civil forfeiture unless the history is more limited than it seems or the meaning of the Constitution is not uncertain.

Part I of this Feature considers possible limits on the history. Several modern authors have argued that most early statutes authorizing in rem forfeiture proceedings did so in contexts where the statutes’ requirements could not reliably be enforced in personam, and these authors suggest that history does not validate the use of in rem forfeiture in other contexts.46 There is something to that argument—but, in my view, not enough. Both at the federal level and in the states, various early statutes authorized forfeitures to be enforced in rem even in the absence of any obvious barrier to proceedings in personam. As far as I know, moreover, no early judges or lawyers interpreted the Due Process Clause or related constitutional provisions to draw the distinction that modern authors have suggested.

Part I goes on to consider a separate possible limitation. Historically, statutes authorizing in rem forfeiture reached only items that were themselves involved in illegal conduct, not items that simply were purchased with the proceeds of such conduct. The use of in remprocess against the latter items is a modern development. Given other well-accepted legal principles, though, Part I concludes that this historical distinction does not make a constitutional difference.

Part II considers a more fundamental objection to civil forfeiture: under most of the relevant statutes, the forfeiture of property can be regarded as a punishment for illegal behavior, and perhaps the Constitution should be understood to prevent the imposition of punishment through civil process. As Part II notes, the idea that punishment requires criminal process can be traced back to nineteenth-century debates over punitive damages. But those debates were resolved in favor of the constitutionality of using civil process to impose some forms of punishment. Dating back to the beginning of the Republic, moreover, state and federal statutes routinely backed up their requirements with the threat of monetary penalties for violations, and such penalties routinely were collected through civil actions. The forfeiture of specific items of property does not seem any different—and, historically, it too has been enforced through civil process.

To be sure, some forms of punishment can be imposed only through criminal process. Cases in which the government asks a court to punish someone with death or imprisonment surely trigger the special procedural protections that the Constitution requires for criminal prosecutions. But centuries of practice support the idea that civil process can be used to declare the loss of property, even when that loss is punitive.

Part III considers one further argument: even if statutes can validly authorize civil forfeiture, perhaps Congress cannot validly authorize administrative forfeiture. Read broadly, a recent dissent by Chief Justice Roberts might seem to suggest that executive officials can never declare, authoritatively, that property has been forfeited to the United States; perhaps a binding declaration of forfeiture requires “judicial” power even if no one claims the property after proper notice.47 Again, though, Part III rejects this idea. While federal statutes authorizing administrative forfeiture date back only to 1844 and not to the Founding,48 other well-accepted practices are analytically indistinguishable. If Congress can establish other statutory deadlines for challenging executive action, then Congress can also establish deadlines for contesting the government’s ownership of property that the executive branch has seized.

These conclusions give me no pleasure. I am skeptical that current forfeiture laws are good policy. But laws can be unwise and even unfair without being unconstitutional. In my view, the basic characteristics of civil and administrative forfeiture considered in this Feature are consistent with the original meaning of the Constitution as liquidated over time. Reform efforts should continue to focus on the political branches, not the courts.

I. in rem versus in personam

Forfeiture laws address the ownership of property. Although the details vary, the typical forfeiture statute provides that when an item is possessed or used in violation of specified legal restrictions, private ownership of the item ceases and title vests in the government by operation of law.49 Subject to some procedural restrictions, moreover, the statute often makes it possible for law-enforcement officials to take immediate possession of the item, through seizure, before the (former) owner has had a chance to contest the government’s position in court.50

Of course, statutes cannot automatically give conclusive effect to an executive officer’s determination that property previously vested in a private individual or entity has been used in such a way that the property now belongs to the government. Under doctrines that became prominent in the mid-nineteenth century but that have roots in earlier understandings of both the federal Constitution and its state counterparts, “[t]he legislative power . . . cannot directly reach the property or vested rights of the citizen, by providing for their forfeiture or transfer to another, without trial and judgment in the courts.”51 At the very least, the law could not authorize nonjudicial officials to make an authoritative declaration of forfeiture unless the former owners had an opportunity to contest the government’s position in court.52

The requisite judicial proceedings, however, did not necessarily have to be conducted in personam. As Section I.A briefly describes, in rem forfeiture proceedings have an exceedingly long history in Anglo-American law. Section I.B considers some efforts by modern scholars to cabin the relevant history, but concludes that those efforts fail. Indeed, Section I.C argues that even the modern expansion of in rem forfeiture to the proceeds of illegal conduct probably does not offend the Due Process Clauses as originally understood. In any event, given the modern convergence of in rem and in personam proceedings, Section I.D suggests that the in rem nature of civil forfeiture is not a promising target for constitutional attack.

A. A Brief History of In Rem Forfeiture

Long before the American Revolution, both the English Parliament and legislatures in the American colonies were using the threat of forfeiture to encourage compliance with statutes. Forfeitures of this sort, moreover, often were enforced through civil proceedings in rem. Modern courts and commentators already know the outlines of the relevant history,53 but this Section provides a brief recap.

From the colonists’ perspective, some of the most prominent forfeiture provisions in English law appeared in the Navigation Acts, many of which regulated colonial trade in the service of England’s mercantilist system.54 For instance, the Navigation Act of 1660 required that English ships be used to carry imports to and exports from the American colonies, “under the penalty of the Forfeiture and Losse of all the Goods and Commodityes which shall be Imported into, or Exported out of, any the aforesaid places in any other Ship or Vessell, as alsoe of the Ship or Vessell with all its Guns Furniture Tackle Ammunition and Apparell.”55 The same Act added that certain important products (including sugars, tobacco, cotton, and wool) could not be exported from the American colonies to any place not dependent on the English Crown, again upon pain of forfeiting both the goods and the ship that carried them.56 A few years later, Parliament imposed similar restrictions in the other direction: most goods produced or manufactured in Europe could enter the colonies only by way of England or Wales, and goods illegally imported from elsewhere were forfeited along with the ship in which they were imported.57

Judicial proceedings to enforce these forfeitures could take various forms. For instance, the Navigation Act of 1660 explicitly authorized one of its provisions to be enforced through prize cases in admiralty.58 The term “prize case” refers to a special type of proceeding in rem.59 The laws of war allowed vessels acting under the authority of one of the warring nations to try to capture vessels and cargos belonging to citizens or subjects of the enemy.60 Upon a capture, the captors would take their prize to port and initiate in rem proceedings in a court of admiralty.61 Owners who denied that the property was lawful prize could appear in those proceedings to contest the captors’ position,62 but if the court agreed with the captors, the court would enter a decree condemning the property, and the proceeds would be distributed according to the law of the capturing nation.63

In a sense, the typical wartime prize case was a type of forfeiture proceeding, because the previous owners were losing their property. But the cause of the forfeiture was not that the property had been involved in some legal infraction.64 Instead of being a tool of law enforcement, prize cases usually were a tool of war. Indeed, the law of prize was simply one manifestation of a broader principle: as far as the laws of war were concerned, a nation could seize and condemn all property owned or possessed by the enemy’s adherents, on the theory that all such property adds to the enemy’s strength.65 The prize cases authorized by the Navigation Act of 1660 were different, because they covered only property linked to violations of the Act. Specifically, the section of the Act that prohibited the use of foreign vessels for carrying goods to or from the colonies included the following enforcement provision:

[A]ll Admiralls and other Commanders at Sea of any the Ships of War or other Ship haveing Comission from His Majesty . . . are hereby authorized and strictly required to seize and bring in as prize all such Ships or Vessells as shall have offended contrary hereunto and deliver them to the Court of Admiralty there to be proceeded against . . . .66

Apart from this provision authorizing certain naval seizures to be treated as prizes, many sections of the Navigation Act of 1660 indicated that their forfeitures could be enforced qui tam, through actions brought “in any Court of Record” by any appropriate process (“Bill Information Plaint or other Action”).67 Despite this apparent breadth of options, scholars agree that in England, as opposed to the colonies, the main forum for enforcement proceedings was the Court of Exchequer—“the historic court of the King’s revenue.”68 There, forfeiture proceedings “were commenced by civil information, . . . either in personam or in rem.”69 (The “information in rem” in the Court of Exchequer was a traditional means for the king or a qui tam informer to obtain a judicial decree recognizing the Crown’s ownership of specific items of property.70 Although modern readers may think of “informations” as being exclusively criminal, that was not the nature of informations in the Court of Exchequer: even when brought to enforce statutory forfeitures, an action upon an information in rem was a civil proceeding about the ownership of property.71 Indeed, the Court of Exchequer was said to have no criminal jurisdiction at all.72)

In addition to the restrictions on commerce found in the Navigation Act of 1660, England’s acts of trade and navigation imposed customs duties on various goods.73 Parliament backed up such duties with the threat of forfeiture, and the forfeiture provisions sometimes covered not only goods that were smuggled into England without payment but also the ships that were used to carry them, the boats that were used to unload them, and the horses and carriages that were used to take them away.74 Again, the Court of Exchequer was the traditional forum in England for actions to enforce forfeitures under both customs and excise statutes,75 and again informations in rem were used for this purpose.76 (In the early eighteenth century, Parliament authorized many forfeitures under these statutes to be handled instead by local justices of the peace or commissioners of the excise,77 but these matters too proceeded in rem.78)

In the American colonies too, forfeitures for violations of the acts of trade and navigation were frequently enforced through civil proceedings in rem. Because the colonies lacked specialized courts of exchequer, many early enforcement proceedings were brought in the colonies’ existing courts of common law, which are said to have “closely followed the procedure in Exchequer” (complete with trial by jury even in proceedings in rem).79 By the end of the seventeenth century, though, “the obstinate resistance of American juries” had led the Crown to seek another mechanism for enforcing the Navigation Acts.80 In 1696, Parliament gave concurrent jurisdiction over enforcement proceedings in the colonies to a set of vice-admiralty courts (which sat without juries),81 and those courts eventually became the primary forum for cases in the colonies about alleged violations of the Navigation Acts.82 Again, forfeiture proceedings in the colonial vice-admiralty courts could be—and were—brought in rem.83

England’s approach to colonial trade took a new direction in the 1760s, when Parliament sought to address war debt by extracting more revenue from the colonies.84 For instance, the Revenue Act of 1764 (portions of which were short-lived) increased customs duties on various goods imported into or exported from the colonies.85 Like other customs laws, the Act not only threatened smugglers with personal penalties but also provided for the forfeiture of property used in connection with smuggling.86 The Act also explicitly allowed prosecutors and informers to bypass juries by using the vice-admiralty courts to recover any forfeiture or penalty incurred in the colonies under “any . . . act or acts of parliament relating to the trade and revenues of the said . . . colonies”—even when analogous enforcement proceedings in England would not trigger admiralty jurisdiction.87

Colonists bitterly complained both about taxation without representation and about the use of the vice-admiralty courts for revenue matters that, in England, would have been tried to a jury in the Court of Exchequer.88 But while the vice-admiralty courts were highly unpopular, the colonists did not reject the general concept that statutes might use forfeiture as a tool of law enforcement, or that forfeiture proceedings might be brought in rem rather than in personam. To the contrary, when the United States gained independence, the new states continued to use the threat of forfeiture to back up their own customs and antismuggling laws, and many statutes explicitly authorized in rem proceedings to enforce such forfeitures.89

Once the Constitution created a federal Congress with authority to levy taxes and to regulate interstate and foreign commerce, the same was true at the federal level. When Congress convened in 1789, it promptly imposed customs duties on imported goods90 and tonnage duties on ships,91 and the Collection Act that Congress passed to enforce those duties is replete with forfeiture provisions.92 Different types of infractions triggered forfeitures of different breadth. For instance, removing dutiable goods from a wharf before they were weighed or gauged made only the goods themselves forfeit.93 But if goods worth at least $400 were unloaded and delivered from a vessel at nighttime, or without a permit from the collector of customs, the forfeiture extended to the vessel as well as the goods.94 With respect to these and other forfeitures, the statute contemplated in rem proceedings against the forfeited goods and vessels, initiated by “seizure and libel” and culminating in “condemnation.”95

Although the federal Constitution did not have a Due Process Clause when Congress enacted these provisions and the similar provisions in the Collection Act of 1790,96 ratification of the Bill of Rights did not change Congress’s practices with regard to forfeiture. Thus, when Congress revised the Collection Act in 1799, the new statute included equally extensive forfeiture provisions,97 to be enforced through the same in rem proceedings.98 Early Congresses also used the threat of forfeiture (again enforced in rem) to back up many other statutory restrictions on shipping, including limitations on the slave trade,99 prohibitions on exporting certain goods,100 and embargoes on trading with certain nations.101

Notwithstanding the old complaints about colonial vice-admiralty courts, the Supreme Court soon held that when vessels or cargos were seized on navigable waters under these or other statutes, the ensuing forfeiture proceedings were properly brought in admiralty.102 By contrast, when property was seized on land, forfeiture cases usually proceeded at law.103 Whether brought in admiralty or at law, though, forfeiture proceedings were commonly conducted in rem. (At law, the normal process was an information in rem of the sort used in England’s Court of Exchequer.104 In admiralty, the process was sometimes called an information and sometimes called a libel, but again it was in rem.105)

The norm of enforcing forfeitures in rem was strong enough to affect the interpretation of statutes that declared forfeitures but were not specific about enforcement procedures. In 1809, for instance, Congress supplemented the then-existing Embargo Act with further penal provisions—some declaring forfeitures of vessels and cargos, others imposing civil or criminal penalties on individuals.106 The 1809 statute addressed enforcement as follows: “[A]ll penalties and forfeitures incurred by force of this act . . . may be prosecuted, sued for, and recovered by action of debt, or by indictment or information . . . .”107 In an opinion prepared on circuit, Justice Story concluded that the word “information” should be understood to encompass “proceedings in rem, for forfeitures.”108 He went on to indicate that such proceedings were the standard way to recover forfeitures—so that even if the statute had said nothing at all about the mode of enforcement, “I should have had no doubt that an information [in rem] would have lain upon common law principles.”109

That was true even when forfeitures were incurred for violations of a statute that also authorized personal penalties against violators themselves: proceedings in rem to enforce a forfeiture did not have to be predicated upon proceedings in personamagainst any violator (unless the relevant statute provided otherwise). The standard citation for that proposition is The Palmyra,110 a forfeiture proceeding brought in rem under a federal statute that not only authorized the prosecution of “any person or persons [who] shall, on the high seas, commit the crime of piracy, as defined by the law of nations, and . . . shall afterwards be brought into or found in the United States,” but also authorized condemnation proceedings against “any vessel or boat, from which any piratical aggression, search, restraint, depredation or seizure shall have been . . . attempted or made.”111 According to Justice Story’s opinion for the Supreme Court, the longstanding practice under statutes that authorized “both a forfeiture in rem and a personal penalty” was that “the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam.”112 Justice Story confirmed this understanding of the law: “[N]o personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.”113

B. Might History Support In Rem Forfeiture Proceedings Only Where In Personam Proceedings Would Have Been Difficult?

At least for originalists, the historical pedigree of civil forfeiture as a tool of law enforcement—dating back to colonial America, continuing at the state level after independence, and carried forward at the federal level from the First Congress on—might seem to support the constitutionality of civil forfeiture as a tool of law enforcement today. According to some modern commentators, however, the history is more limited than it initially appears. Early federal forfeiture provisions were concentrated in customs statutes and other laws about shipping,114 which aimed partly to affect the behavior of people outside the United States. Under traditional understandings of personal jurisdiction, American courts could not have exercised in personam jurisdiction over “at least some . . . and perhaps most” of those people.115 If Congress had not been able to authorize in rem forfeiture proceedings against property that entered the United States in violation of statutory requirements, then foreign shippers and shipowners might have had little reason to pay customs duties or otherwise to comply with federal shipping laws. Under these circumstances, in rem forfeiture proceedings were a practical necessity if American shipping laws were to be effective.116 Some modern lawyers suggest that history does not support the use of in rem forfeiture proceedings in other circumstances.117 If one sees in rem forfeiture proceedings as compromising constitutional principles, moreover, one might think that the Constitution prohibits expanding those proceedings beyond their historical functions. In one of the most powerful statements of this position, Stefan Herpel concludes that the Due Process Clauses of the Fifth and Fourteenth Amendments prevent the government from using civil in rem forfeiture to enforce laws that could readily be enforced through proceedings in personam.118

The initial premise of this argument has deep historical roots. Indeed, Rufus Waples—the lawyer who, in 1882, published the first systematic study of actions in rem in the United States—observed that “in a great proportion of causes in rem, there would be no means of making a personal citation upon the owner of the res.”119 Sometimes that was because of territorial limits on jurisdiction in personam, and sometimes it was simply because of the practical difficulty of identifying the owner. (To illustrate the latter possibility, Waples noted the realities of smuggling: when customs inspectors came across a cache of smuggled goods, the inspectors could readily tell that the goods were being imported in violation of law, but “it is almost always impossible to know who is the owner.”)120 For one reason or another, though, many of the areas in which American legislatures traditionally authorized in rem forfeiture proceedings were areas in which in personam enforcement could have been difficult.

Still, neither Waples nor earlier lawyers and judges understood the Constitution to limit actions in rem to cases of this sort.121 Nor did early legislatures act upon such a theory. While legislatures did authorize in rem proceedings in situations where in personam proceedings would often have been impractical, they also authorized in rem proceedings in other situations.

Federal tax statutes provide some examples. Admittedly, until the Civil War, the main (and often the only) federal taxes were customs duties on imported goods.122 The fact that federal customs statutes included forfeiture provisions is consistent with Herpel’s thesis because a sizable fraction of customs violations would have involved property owned by foreigners.123 But federal customs statutes did not limit the availability of in rem procedures to this fraction of cases; by the terms of the statutes, forfeiture proceedings were to be conducted in rem even if the owner of the subject property could readily have been reached in personam.124 As Herpel acknowledges, moreover, there were periods in both the 1790s and the 1810s when Congress supplemented customs duties with domestic excise taxes (that is, taxes on the production or sale of certain goods within the United States).125 These “internal revenue” taxes had no international flavor, yet Congress enforced them with the same sort of forfeitures that Congress used to enforce customs duties.126

Take the Act of March 3, 1791, by which the First Congress imposed an excise tax on “spirits . . . distilled within the United States.”127 In aid of collecting this tax, the statute not only imposed some monetary penalties on violators, but also declared a broad variety of forfeitures. For instance, if spirits were removed from a distillery without having been marked as the law required, “the [spirits], together with the cask or casks containing [them], and the horses or cattle, with the carriages, their harness and tackling, and the vessel or boat with its tackle and apparel employed in removing them, shall be forfeited, and may be seized by any officer of inspection.”128 Likewise, spirits were not to be removed from a distillery except during daylight hours, again “on pain of forfeiture of such spirits” and “the casks, vessels and cases containing the same.”129 The statute contemplated that these forfeitures could be enforced “by information,” just like the forfeitures that the same statute established in aid of the customs duties on imported spirits.130 In the context of excise forfeitures as well as customs forfeitures, moreover, the word “information” seems to have been understood to encompass informations in rem.131 This understanding resonates with the traditional practice in England, where in rem process had been used to enforce forfeitures incurred under excise as well as customs statutes.132

One cannot always extrapolate from the procedures for enforcing taxes to the procedures that would have been considered adequate in other contexts.133 But early American lawmakers also included forfeiture provisions in a variety of other statutes about purely domestic topics unrelated to taxation. Pursuant to those statutes, items that were otherwise legitimate subjects of property could be forfeited if used in violation of the law, and the forfeitures could be declared through proceedings in rem.134 For example, early American legislatures provided for the forfeiture of horses used in races that violated gambling laws,135 shingles sold in bundles that violated commercial regulations,136 and gunpowder stored above the quantities permitted by fire safety laws.137

Of course, because of limits on Congress’s enumerated powers, these laws were found primarily at the state and local level, and so they do not bear directly on the original understanding of the Due Process Clause of the Fifth Amendment. But many state constitutions had similar clauses of their own,138 and these provisions apparently were not understood to prevent lawmakers from authorizing in rem forfeiture proceedings against property used in violation of the law.139 At any rate, early state and local laws of this sort do not seem to have generated many constitutional challenges.

The earliest significant set of counterexamples may be the Maine Liquor Law of 1851 and copycat statutes in other states, which prohibited most sales of liquor and also authorized the seizure and forfeiture of liquor intended for unlawful sale.140 Those statutes did generate constitutional challenges, and at first the challenges succeeded: several courts concluded that the statutes’ enforcement provisions violated the state constitution.141 As initially enacted, though, the Maine laws had a number of idiosyncratic features that help explain the courts’ chilly reception. For instance, the first generation of Maine laws contemplated a strange judicial process that appeared to start in rem but that nonetheless put the owner or keeper of the liquor at risk of personal penalties: if the court believed that the liquor was covered by the statute and had been intended for unlawful sale, then not only would the liquor “be declared forfeited . . . and be destroyed,” but the court would fine the owner or keeper of the liquor twenty dollars or jail him for thirty days in default of payment.142 Partly because of this feature, a federal circuit court in Rhode Island characterized the forfeiture proceeding as a criminal prosecution rather than a civil case143—a view that the Supreme Judicial Court of Massachusetts echoed and that contributed to the conclusion that the statute was unconstitutional because it did not conform to the requirements for criminal procedure.144 Once legislatures revised the statutes to keep the in rem forfeiture proceedings more distinct from any proceedings for personal penalties (and to supply appropriate process for the latter),145 courts tended to uphold the forfeiture provisions.146

The terms in which the Maine laws were debated, moreover, suggest a broad consensus in favor of the constitutionality of the typical forfeiture statute. Courts that upheld the Maine laws sought to group them with other forfeiture provisions. Thus, Connecticut’s highest court emphasized that “[f]orfeitures have frequently been imposed by laws of congress as well as by other laws of this state, none of which have ever been adjudged unconstitutional.”147 By contrast, courts that saw problems with the Maine laws sought to distinguish them from other forfeiture provisions.148 Neither set of courts suggested that there is anything categorically unconstitutional about using in rem forfeiture as a tool of domestic law enforcement.

In sum, early forfeiture provisions cannot be explained entirely as a response to limits on in personam jurisdiction. Even in the absence of apparent obstacles to proceedings in personam, antebellum American legislatures sometimes authorized proceedings in rem, and courts seemed to accept this practice.

C. In Rem Forfeiture of the Proceeds of Illegal Transactions

There is at least one respect in which modern civil-forfeiture statutes do go far beyond their forebears. Many of the modern statutes reach not only property that is used to commit or facilitate an illegal transaction, but also the proceeds of such transactions and property that is traceable to those proceeds.149 For instance, the concept of “proceeds forfeiture” explains why police sometimes seize a great deal of property belonging to alleged drug dealers—not on the theory that lawnmowers and television sets were used to facilitate crimes, but on the theory that they were purchased with the proceeds of those crimes.150

As Justice Stevens has suggested, the use of in rem process against property that was purchased with tainted funds appears to be a modern invention.151 The first federal statute to authorize in rem forfeiture proceedings against the proceeds of illegal transactions may date back only to 1978.152 Although Congress enacted more such statutes in the 1980s,153 the use of in rem process against property that was itself involved in illegal conduct has a far stronger historical pedigree than the use of in rem process against property that was merely acquired as a result of such conduct.

If the latter sort of forfeiture is an innovation, originalists might wonder whether it comports with the Constitution. Of course, if a legislature has the power to prohibit certain transactions, the legislature probably also has the power to make the prohibited transactions less profitable by providing for forfeiture of the proceeds. But might the Due Process Clause require such forfeitures to be enforced in personam rather than in rem?

At first glance, Rufus Waples’s 1882 treatise might seem to support such a restriction. Waples acknowledged that the law could authorize proceedings in rem against property that was itself “guilty” in the eyes of the law.154 According to Waples, however, “Things Guilty must have been used in contravention of law, or held in contravention of law, to justify procedure against them.”155 Waples explicitly cast this point in constitutional terms: “Congress cannot constitutionally provide that property shall be condemned as guilty by proceedings in rem where there is no offense to be imputed” to the property.156 Thus, Waples thought that the Due Process Clause would prevent Congress from “provid[ing] for the forfeiture of a ship engaged in legitimate commerce, by proceedings directly against that ship, for the offense of illicit trade carried on by another ship belonging to the same owner.”157 Likewise, if an illicit distillery was located on a large farm, “only such acreage as is used for distilling purposes, and for ingress and egress, . . . can be rightfully condemned, whatever the text [of the forfeiture statute] may say.”158 To enforce a broader forfeiture, Waples suggested, the government would have to proceed against the owner in personam rather than against the property in rem.159

Yet even if one accepts Waples’s understanding of the constitutional limits on in rem process,160 modern proceeds-forfeiture statutes do not necessarily violate that understanding. To be sure, some of the proceeds of illegal transactions might not themselves have been used in contravention of the law. But the logic that traditionally was used to explain civil forfeiture nonetheless allows the law to reach those proceeds in rem.

To see why, one must start by recognizing that even when civil-forfeiture statutes are designed to affect behavior, they take the form of property regulations. Specifically, they identify circumstances in which the ownership of property passes from one person to another by operation of law. For more than two centuries, moreover, the Supreme Court has allowed Congress to provide that when a particular item of property is used or transported in a manner that the law validly prohibits, forfeiture occurs at that very moment.161 Under forfeiture provisions of this sort, ownership of the item passes to the government as soon as the item is misused, and the item’s subsequent seizure and condemnation through proceedings in rem simply confirm that a transfer of ownership has already occurred.162 Waples fully accepted this doctrine.163 According to Waples, the fact that the government has a preexisting interest in the property is precisely why the government can proceed in rem.164

Modern civil-forfeiture statutes address this topic explicitly. Ever since 1984, the relevant section in the federal Controlled Substances Act has specified that “[a]ll right, title, and interest in property described in [the provision identifying property that is subject to forfeiture] shall vest in the United States upon commission of the act giving rise to forfeiture under this section.”165 Since 1986, the basic civil-forfeiture provision in Title 18 of the United States Code has included essentially identical language.166

Admittedly, these provisions may have hidden complexities. In a concurring opinion from 1993, Justice Scalia interpreted the Controlled Substances Act to embody what he called “the common-law relation-back doctrine”: instead of literally acquiring title as soon as property becomes subject to forfeiture, the government acquires title “only upon entry of the judicial order of forfeiture,” but that order relates back to the date of the wrongful act.167 While this interpretation solves some practical problems, it does not readily fit the statutory language,168 and it has less historical support than Justice Scalia suggested.169 Even on Justice Scalia’s view, though, forfeiture statutes give the government some sort of interest in property as soon as the property is misused.170 What is more, case law strongly suggests that Congress can go farther than Justice Scalia read the Controlled Substances Act to go: it is within Congress’s power to provide “that the forfeiture becomes absolute at the commission of the prohibited acts, and that the title from that moment vests in the United States.”171

If Congress can indeed make forfeitures effective at the moment that property is misused, then it follows almost inexorably that most “proceeds forfeiture” is constitutional: Congress can subject the proceeds of illegal transactions to the same sort of in rem process as property that was directly involved in those transactions. In fact, some proceeds of illegal transactions were directly involved in those transactions. For instance, if I illegally sell drugs for money, the money that I receive in the exchange is as much a part of the illegal transaction as the drugs themselves. If the law can declare the forfeiture of other items that are used for unlawful purposes, the law can also reach the money used in the exchange.

That rationale for forfeiture might not seem to extend to “derivative” proceeds of the illegal transaction, such as items that I buy with the money that I received in exchange for drugs.172 But if the law can make forfeitures effective as of the moment of the unlawful use, the law can specify that the money belonged to the government as soon as I received it in exchange for drugs. To the extent that I then use the government’s money to buy other items, moreover, the law presumably can provide that those items belong to the government rather than me;173 just as equity might impose a “constructive trust” on such items,174 the law can provide that the government owns whatever I buy with money that already has been forfeited to the government. Even on Waples’s view that the government can bring an action in rem only against property in which the government has a preexisting interest, it follows that the law can authorize the government to bring an action in rem against such proceeds.175

Because this argument is analytical rather than historical, readers might wonder about its originalist bona fides. For originalists, though, the fact that modern legislation lacks exact historical analogues does not automatically make it unconstitutional. The point of researching history in connection with evaluating the constitutionality of civil-forfeiture statutes is not to ensure that modern civil-forfeiture statutes reach only the categories of property that the early colonial, state, and federal statutes declared to be forfeit, but rather to shed light on the constitutional principles that might restrain such statutes. I take history to suggest that the original meaning of the Constitution (as liquidated by historical practice) tolerates statutes declaring that when property is used in certain prohibited ways, ownership of the property passes to the government by operation of law, and the government can confirm its title through proceedings in rem against the property itself. If that is so, and if there is no sound basis for distinguishing statutes that authorize in rem proceedings against items obtained in trade for such property, the natural inference is that the Constitution tolerates the latter statutes too.176

D. The Modern Convergence of In Rem and In Personam Procedures

Even if the previous two Sections were not persuasive, there is a further reason to question the idea that modern forfeiture statutes cannot validly authorize proceedings in rem against the proceeds of illegal conduct, or that proceedings in rem are permissible only when responsible individuals cannot be pursued in personam. Arguments that the Due Process Clause requires certain types of forfeiture cases to proceed in personam rather than in rem assume that those two types of proceedings are quite different. That was true in the eighteenth and nineteenth centuries, but it is no longer so true today.

Consider three important respects in which actions in rem used to differ dramatically from actions in personam.

Notice and preclusive effects. Traditionally, a court’s decree about the ownership of property in an action in rem was said to bind the entire world, including people who had not been given any personalized notice of the proceedings.177 Although the initial seizure of the property might supply notice to the person who had been in possession of the property at the time of the seizure, and although notice of the proceedings also had to be posted or published in a local newspaper, actions in rem did not require personal service of process on any particular individual.178 In the mid-twentieth century, however, the Supreme Court held that whether a proceeding is characterized as in personam or in rem, the Due Process Clause demands “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”179 Thus, even in actions in rem, current doctrine requires “efforts to provide actual notice to all interested parties comparable to the efforts that were previously required only in in personam actions.”180 In keeping with this principle, modern rules prescribing the procedure for in rem forfeiture actions require the government to send personalized notice to people with known interests in the property.181

Jurisdiction. Traditionally, the Due Process Clause of the Fourteenth Amendment was thought to prevent a state from exercising in personam jurisdiction over an unconsenting defendant who did not owe allegiance to the state unless the defendant (or an agent authorized to receive summonses on his behalf) was served with a summons inside the state’s borders.182 By contrast, courts could exercise in rem jurisdiction over property that was located in the state no matter where any claimants might be found. Again, however, modern doctrine has narrowed this distinction. In the mid-twentieth century, the Supreme Court allowed in personam jurisdiction to expand; states can now send summonses beyond their borders to reach defendants who are not physically present in the state but who satisfy the “minimum contacts” test.183 Conversely, the Court has cut back on the permissible reach of in rem jurisdiction, or at least quasi in rem jurisdiction.184 Because of these twin developments, the outer limits of in rem jurisdiction now resemble—and may be identical to—the outer limits of in personam jurisdiction.

Burden of proof. In the typical in personam action, the plaintiff bears the burden of proving each of the elements of his or her cause of action against the defendant. Historically, the allocation of burdens of proof in actions in rem has been less clear.185 Rather than leave the topic in the courts’ hands, early federal customs statutes that included forfeiture provisions explicitly put the burden of proof on claimants who contested seizures or denied that property had been forfeited.186 This allocation of the burden of proof came to be seen as a basic feature of the customs system,187 and Congress extended it to other areas too.188 In 2000, however, Congress rolled back those extensions. While claimants still have the burden of proof with respect to forfeitures under customs statutes, the Civil Asset Forfeiture Reform Act of 2000 established the following rule for most other federal statutes: “In a suit or action brought under any [federal] civil forfeiture statute for the civil forfeiture of any property[,] . . . the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture . . . .”189 At least at the federal level, then, the burden of proof in most in rem forfeiture actions now resembles the burden of proof that would apply in civil actions in personam.

To be sure, the traditional differences between actions in rem and actions in personam have not vanished completely. For instance, the typical action in rem still begins with the seizure of property, while the typical action in personam does not. In some other contexts, moreover, the Supreme Court has understood the Due Process Clause to require notice and an opportunity to be heard before the government removes property from someone’s possession.190 But even as the Court was establishing this doctrine, it recognized an exception for forfeiture proceedings.191 Although the Court has since narrowed this exception so that an adversary hearing is normally required before the seizure of real property,192 the government’s ability to seize personal property without prior notice continues to distinguish in rem forfeiture proceedings from many other civil actions. Even this aspect of current doctrine, however, is not really about the difference between actions in rem and actions in personam. In allowing the government to seize movable personal property without advance notice for purposes of civil forfeiture, the Supreme Court reasoned that forfeiture proceedings implicate the same considerations that had justified dispensing with preseizure notice in other contexts.193 Those considerations can be relevant whether an action is proceeding in rem or in personam.

To the extent that the procedures used for actions in rem have converged with the procedures used for actions inpersonam, it is hard to argue that the Due Process Clause requires certain types of civil-forfeiture actions to proceed in personam rather than in rem. After all, if the procedures currently used for civil actions in personam would be adequate to satisfy the Due Process Clause, and if the procedures currently used for civil actions in rem supply essentially the same safeguards, then the mere fact that an action is denominated in rem rather than in personam should not matter.

II. civil versus criminal

Where forfeiture is concerned, though, perhaps the procedures currently used for civil actions in personam are not adequate to satisfy the Due Process Clause. The most fundamental argument that has been advanced against the constitutionality of civil-forfeiture statutes is that many of them purport to use civil process to achieve “criminal law objectives”194: they authorize the government to punish people for violations of the law, but without the special safeguards that the Constitution requires for criminal prosecutions. According to many commentators, courts should not permit this end run around criminal procedure.195 While the details of the commentators’ arguments vary, the basic idea is simple: legislatures should not be able to avoid the constitutional safeguards for criminal prosecutions simply by authorizing the government to impose punishments through nominally “civil” proceedings.

The modern Supreme Court has struggled with arguments of this sort. In the words of one thoughtful scholar, the distinction between “civil” and “criminal” proceedings is one of “the least well-considered and principled in American legal theory,” and the Supreme Court’s decisions on this topic are “as incoherent as any in the Court’s jurisprudence.”196

At least where forfeiture is concerned, though, Part II.A suggests that the incoherence in the Court’s doctrine did not really emerge until the last two decades of the nineteenth century. Even today, Part II.B agrees with the late J. Morris Clark that most of the Court’s seemingly disparate results can be rationalized; there is an interpretation of the Constitution that largely fits the data points supplied by modern doctrine, and this interpretation does not foreclose the use of civil procedure to declare the forfeiture of property, even when the forfeiture serves the purpose of punishing or deterring forbidden behavior. Part II.C identifies strong historical support for Professor Clark’s key insight.

A. The Path to Current Doctrine

Early on, the Supreme Court took a clear position about how to characterize the typical forfeiture proceeding. The Court first discussed the issue in 1796, in a proceeding that the United States had initiated by information against a vessel that allegedly had been used to export arms in violation of federal law.197 The district court had decreed a forfeiture, but a circuit court had reversed the decree on appeal.198 Arguing that the matter “is a criminal cause” as to which “the judgment of the District Court is final,” the United States asked the Supreme Court to hold that the circuit court had lacked jurisdiction.199 But the Supreme Court declared itself “unanimously of opinion, that [this] is a civil cause: It is a process of the nature of a libel in rem; and does not, in any degree, touch the person of the offender.”200

The Marshall Court repeatedly took the same position,201 as did many other courts.202 In 1882, Rufus Waples thus observed that even though actions in rem for forfeiture could be “based upon criminal offenses committed in, with, or by the things proceeded against,” such actions “are well settled to be civil, and not, in any sense, criminal actions.”203

Yet if this principle was “well settled” in 1882, the Supreme Court unsettled it just four years later. “We are . . . clearly of opinion,” the Court announced in Boyd v. United States, “that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal.”204 Although the scope of the Court’s ruling was uncertain, the Court held that at least some forfeiture proceedings that are “civil in form” are nonetheless “quasi-criminal,” and should be treated like criminal proceedings “for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself.”205

A decade later, though, the Court reached a different conclusion about the Sixth Amendment, which lists various rights that “the accused” shall enjoy “[i]n all criminal prosecutions.”206 In United States v. Zucker, the Court held that this language reaches only proceedings that are “technically criminal in [their] nature” and “has no reference to any proceeding . . . which is not directly against a person who is accused, and upon whom a fine or imprisonment, or both, may be imposed.”207 Specifically, Zucker concluded that the Confrontation Clause did not reach a proceeding that the government had brought through civil process under the descendant of the same customs statute that had been at issue in Boyd.208

The tension between Boyd and Zucker has carried forward into more recent cases. Relying on Boyd, the Warren Court held that just as the fruits of unreasonable searches and seizures are often inadmissible as evidence in criminal trials, so too they are inadmissible in the typical forfeiture proceeding; the “object” of both types of proceedings “is to penalize for the commission of an offense against the law,” and “the technical character of a forfeiture as an in rem proceeding against the goods” does not matter.209 For much the same reason, the Court continued to classify some civil-forfeiture proceedings as “criminal case[s]” for purposes of the Self-Incrimination Clause of the Fifth Amendment.210 In keeping with Zucker, though, such proceedings still do not qualify as “criminal prosecutions” for purposes of the Sixth Amendment.211 Nor do they trigger the special burden of proof that the Supreme Court has read the Due Process Clause to require for criminal cases: while the government must prove each element of an offense “beyond a reasonable doubt” in order to obtain a criminal conviction,212 this requirement “does not apply to civil forfeiture proceedings.”213

Under current doctrine, most civil-forfeiture proceedings also do not trigger the Double Jeopardy Clause. For instance, suppose that federal law makes certain conduct a crime punishable by imprisonment and, separately, provides for forfeiture of property used in such conduct (with the forfeiture to be declared through an action in remagainst the property itself). If the government prosecutes someone criminally, but he is acquitted, can the government then bring a forfeiture action against his property based on the same alleged conduct? Although the Double Jeopardy Clause historically was not understood to bar this course of proceedings,214 divergent views started to emerge around the time of Boyd.215 In the twentieth century, the Supreme Court came to think that the answer depended on whether the forfeiture in question was “punitive” or “remedial.”216 Perhaps out of a desire to reach the result that history supported, though, the Court went to great lengths to characterize particular forfeiture statutes as “remedial” for this purpose.217 Eventually, the Court announced a not-quite-categorical rule: in United States v. Ursery, a case involving the extensive forfeiture provisions in modern drug and money-laundering statutes, the Court held that “[t]hese civil forfeitures (and civil forfeitures generally) . . . do not constitute ‘punishment’ for purposes of the Double Jeopardy Clause.”218

Just three years earlier, however, the Court’s opinion in Austin v. United States had held that forfeiture under one of the very same statutes “constitutes ‘payment to a sovereign as punishment for some offense,’ . . . and, as such, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.”219 The majority opinion in Ursery offered no explanation of why the Double Jeopardy Clause was different, but the Court nonetheless insisted on the distinction: “The holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.”220

B. The Perils of Equating “Punitive” with “Criminal”

In 1976, just a few years before his untimely death, J. Morris Clark explained how to make sense of these cases as a doctrinal matter.221 To do so, “one must temporarily disregard the Court’s language” and look for a pattern in the Court’s results.222 Although the modern Court has sometimes spoken as if laws are either “criminal and punitive” or “civil and remedial,”223 the Court’s outcomes can be rationalized better if one separates the criminal/civil distinction from the punitive/remedial distinction. Of course, those distinctions overlap to some extent: some paradigmatic types of punishment (such as death sentences and prison terms) are inherently criminal.224 But if the legislature so directs, certain other types of punishment (including punitive deprivations of property) can be declared in “civil” proceedings.225

This clarification matters, because some provisions in the Bill of Rights refer specifically to criminal cases and do not appear to reach any civil proceedings (even those involving punishment).226 By its terms, for instance, the Sixth Amendment covers only “criminal prosecutions.”227 Similar limitations appear in several provisions of the Fifth Amendment—the Grand Jury Clause (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .”228), the Double Jeopardy Clause (“. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”229), and the Self-Incrimination Clause (“. . . nor shall [any person] be compelled in any criminal case to be a witness against himself”230). With the exception of the Self-Incrimination Clause (which Boyd arguably misinterpreted), the Supreme Court has generally held that these provisions do not apply to civil-forfeiture proceedings.231 As Professor Clark noted, the most logical explanation of that conclusion is not that civil-forfeiture proceedings are “remedial” rather than “punitive,” but simply that they are not “criminal” in the necessary sense.232

By contrast, some other constitutional provisions are worded in such a way as to restrict all types of punishment, whether enforced through criminal or civil proceedings. For these provisions, the criminal/civil distinction does not matter; instead, the punitive/remedial distinction takes over. That explains why civil forfeiture is subject to the Excessive Fines Clause. At least on its face, the Excessive Fines Clause is not limited to criminal punishment,233 and the Supreme Court has understood it to restrict fines and forfeitures imposed through civil process too.234

As Professor Clark suggested, the Ex Post Facto Clauses may be similar.235 Although some modern federal judges take the Supreme Court to have held definitively that the Ex Post Facto Clauses “appl[y] only to criminal cases,”236 that gloss on the Court’s opinions may not be quite right. In the seminal case of Calder v. Bull,237 the Court did treat the phrase “ex post facto law” as a term of art that connotes the retroactive authorization of punishment. But the Justices’ seriatim opinions did not clearly specify whether the phrase is limited to criminal punishment,238 and subsequent courts used formulations that encompass penalties and forfeitures more broadly.239 In the 1860s, federal courts gave teeth to the broader idea: in several cases, they applied the Ex Post Facto Clauses to laws that did not operate through the criminal process, but that the courts saw as imposing “punishment” for pre-enactment conduct.240

Unfortunately, the Supreme Court later glossed these cases as establishing that “the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal,”241 and the modern Court has continued to muddy the waters by conflating the punitive/nonpunitive distinction with the criminal/civil distinction.242 That has led several lower federal courts to suggest that unless a civil-forfeiture statute is so “overwhelmingly punitive” that it “must be considered criminal,” the Ex Post Facto Clauses do not prevent it from operating retroactively243—with the result, apparently, that a statute enacted in 2016 could declare that property has been forfeited to the government because of how the property was used in 2015. Professor Clark’s analysis shows the route away from this conclusion: the distinction that matters to the Ex Post Facto Clauses, as interpreted by the Supreme Court over the years, is not the criminal/civil distinction but the punitive/nonpunitive distinction.244

C. Historical Support for the Category of Civil Punishment

Professor Clark cast his analysis mostly as a way to make sense of current judicial doctrine.245 But there is considerable historical support for his key insight: not all punishment is criminal punishment.

In the eighteenth and nineteenth centuries, many statutes backed up their requirements by subjecting violators to monetary penalties.246 Lawyers of the day classified such statutes as “penal.”247 But they did not mean that the mulcts authorized by these statutes could be recovered only through criminal prosecutions.248 According to Justice Story, indeed, unless the statute “specially allowed” the use of criminal process, “an indictment [will not] lie for such a penalty.”249 Instead, the default process for collecting monetary penalties of this sort was “an action or information of debt” brought by the government against the person who had violated the statute (and who therefore was indebted to the government in the amount of the penalty).250

An “action of debt,” even to collect a statutory penalty, was a civil proceeding.251 So was an “information of debt,” which again should not be confused with a criminal information.252 Like the information in rem, the information of debt was a familiar process in England’s Court of Exchequer: just as the Crown might file an information in rem against specific items of property that allegedly had been forfeited, so too the Crown might file an information of debt against a person who allegedly owed the Crown a monetary penalty for having violated a statute.253 Authorities agreed that this process “is in the nature of a civil action at the suit of the Crown” and amounted to “the King’s action of debt.”254

When Justice Story wrote that “an action or information of debt” was the default mechanism for the government to recover a monetary penalty imposed by statute,255 he plainly was referring to civil proceedings. Indeed, even judges who believed that the government could use criminal process to collect such penalties agreed that the government rarely did so: “the usual and almost universal practice, in the courts of the United States, has been to enforce the payment of pecuniary penalties, given by statute, by civil and not criminal proceedings.”256

By the mid-nineteenth century, both legislatures and courts were using the term “civil penalties” as shorthand for such mulcts.257 Likewise, courts emphasized that proceedings to recover these penalties were “penal” but not “criminal.”258 Admittedly, there were certain respects in which courts treated penal statutes like criminal statutes. For instance, interpreters often said that penal as well as criminal statutes should be “construed strictly,”259 and the courts of one sovereign did not feel obliged to entertain proceedings to enforce either the penal or the criminal laws of another sovereign.260 On matters of practice and procedure, though, the penal actions that courts did entertain generally followed civil rather than criminal rules.261

Throughout American history, courts have taken a similar approach to statutes that threatened violators not with monetary penalties, but with the forfeiture of specific items of property. Early courts regularly referred to such provisions as “penal”262 and as inflicting a species of “punish[ment]” on the property’s owner.263 Statutes themselves sometimes used similar language, as when they said that their requirements applied “on pain of forfeiture” of the property involved in a violation.264 Again, though, penal did not mean criminal. Like informations of debt, the libels or informations in rem that were used to enforce such forfeitures were “civil proceedings.”265

Despite the general rule that nineteenth-century courts applied doctrines of civil procedure in actions of debt for penalties and proceedings in rem for forfeitures, there were some exceptions. Locke v. United States266 may be an early example. There, the government had filed an eleven-count libel seeking to declare the forfeiture of a cargo for violations of the Collection Act and some other federal statutes, and the district court had rendered judgment in the government’s favor.267 When the case reached the Supreme Court, Chief Justice Marshall affirmed the judgment on the strength of one of the counts in the libel, which allegedly warranted the forfeiture irrespective of the claimant’s objections to the other counts.268 At least according to the Taney Court, Marshall’s conclusion that the judgment could be affirmed on the basis of just one of the counts reflected the view that the case was “in the nature of a criminal proceeding.”269 The analogy between penal actions and criminal prosecutions may also have led judges to require more specificity in pleadings than standard civil practice would have demanded,270 and perhaps to apply a higher standard of proof at trial.271 With rare exceptions, though, even judges who took this view of penal actions did not cast their position in constitutional terms.272 As a result, people seem to have thought that statutes could validly instruct courts to treat penal actions like ordinary civil suits.273

In the first edition of his treatise on criminal law, published in 1856, Joel Prentiss Bishop did try to identify some constitutional limitations on the use of civil procedure to enforce statutory forfeitures. While conceding that “the adjudications on the subject are not numerous,” Bishop asserted that

a legislative forfeiture may be so far in the nature of a punishment for crime, in distinction from a regulation concerning the use of the property, as to require the proceedings, for its enforcement, to be regulated with a reference to the guaranties of rights for the protection of persons charged with crime.274

By 1865, Bishop had developed a more precise formulation of the distinction that he had in mind. His basic idea, as expressed in the heading of the relevant chapter in the third edition, was that forfeiture could proceed outside of the criminal process “where the thing, as distinguished from its owner, is in the wrong.”275 Thus, “[w]henever the law . . . creates a forfeiture of property by reason of its circumstances, or of its peculiar nature as being dangerous to the community,—by reason of any form or position which it assumes,—this forfeiture is not to be deemed a punishment inflicted on its owner.”276 By contrast,

if the law provides, that a person shall forfeit property A for what property B does, or for what the owner does in a matter not connected with the property, or for a bare intent which does not enter into the situation and conduct of the property, the forfeiture is a punishment, which can be inflicted only on conviction of the owner, for the act or intent, viewed as a crime.277

Unfortunately, this analysis risks conflating two separate questions. One question, addressed in Part I of this Feature, concerns the circumstances in which actions must proceed in personam against an offender rather than in rem against property that the offender happens to own. By and large, Bishop’s position on this question was consistent with traditional practices. Bishop did not deny that the law can declare the forfeiture of property that is used in violation of legal restrictions, or that the law can enforce such forfeitures through proceedings in rem.278 His basic point was simply that the law cannot extend this treatment to other pieces of property that are not at all germane to the violations.279 That point does not necessarily undermine the constitutionality of modern forfeiture statutes, which continue to focus on property connected with a violation of the law.280

To the extent that some forfeiture actions must proceed in personam rather than in rem, though, a second question arises: under what circumstances must the proceeding take the form of a criminal prosecution rather than a civil suit? Without focusing specifically on this question, Bishop arguably assumed that criminal procedure is necessary when the law is imposing “a punishment” on an individual.281 But the long history of civil penalties cuts against any such assumption: from the beginning of the Republic on, many statutes have punished infractions with monetary penalties that the government could collect in actions of debt or other civil proceedings.282 Bishop did not attack the constitutionality of those statutes. Nor did he suggest that the Constitution prevented legislatures from enacting civil-forfeiture statutes for punitive purposes. To the contrary, he acknowledged that the motivation behind some such statutes was “the same which pervades our criminal law,” and he did not assert that this motivation made the statutes unconstitutional.283

Whatever the details of Bishop’s own views, some nineteenth-century lawyers did reject the idea that civil process could be used for punitive purposes. This topic received particular attention in the context of punitive damages.284 Dating back to the eighteenth century, both English and American courts had explicitly allowed juries to award “exemplary” or “vindictive” damages in certain kinds of tort cases involving outrageous conduct,285 and American judges of the early nineteenth century had described such damages as a form of punishment.286 In 1830, however, Theron Metcalf wrote an article arguing that this common way of talking was “not true” and “there is nothing punitive in civil actions.”287 According to Metcalf, what courts had called “vindictive” damages amounted to compensation “for insult, contumely, and abuse”—misconduct that inflicted genuine harms on plaintiffs even though those harms did not give rise to an independent cause of action.288 In the 1840s, Simon Greenleaf agreed with Metcalf. Dismissing contrary comments in judicial opinions as “obiter dicta,” Greenleaf insisted that no express holding had definitively allowed civil juries to impose damages for the sake of punishment.289

As Theodore Sedgwick soon pointed out, though, this reading of the cases was strained: courts had upheld the award of genuinely punitive damages in civil actions.290 In 1852, indeed, the federal Supreme Court asserted that “if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.”291 In Justice Grier’s words, “[b]y the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured.”292

Even if Sedgwick was correct about the case law, some judges thought that Metcalf and Greenleaf were “right in principle.”293 In 1873, the Supreme Court of New Hampshire boldly held that “the idea of punishment is wholly confined to the criminal law” and that the state constitution forbade the award of punitive damages in civil cases.294 Some other state courts reached similar conclusions in the ensuing decades.295 But the majority of state courts refused to go along. While tending to acknowledge that punitive damages were a form of punishment, most state courts nonetheless allowed them to be imposed through civil process.296

If one accepts the constitutionality of genuinely punitive damages, and if one also accepts the constitutionality of statutes that threaten violators with “civil penalties” payable to the government (which have even more solid historical roots than punitive damages), it is hard to maintain that no form of punishment can ever be imposed through civil proceedings.297 If legislatures can establish civil penalties measured in money, moreover, it is not clear what would categorically prevent legislatures from establishing civil penalties that entail the loss of some other type of property. Of course, such exactions are limited by the Excessive Fines Clause and other constitutional provisions that have been understood to operate in civil as well as criminal cases. But the mere fact that a particular law uses forfeiture as a penalty does not automatically make actions to enforce the forfeiture “criminal” in the constitutional sense.

III. administrative versus judicial

So far, this Feature has discussed two basic characteristics of civil forfeiture—the fact that it proceeds in rem and the fact that it does not afford the procedural protections that the Constitution requires for criminal cases. In light of historical practice, I have suggested that neither characteristic makes civil forfeiture unconstitutional. This Part considers a third aspect of forfeiture law that has less direct historical support and might seem even more objectionable: both at the federal level and in many states, property is often declared forfeit without any judicial proceedings at all.

Before 1844, the federal customs statutes required the government to launch proceedings in court whenever it had seized property that it wanted to be adjudged forfeit.298 But in 1844, Congress established a special procedure

in all cases of seizure of any goods, wares, or merchandise, which shall, in the opinion of the collector or other principal officer of the revenue making such seizure, be of the appraised value of one hundred dollars or less, and which shall have been so seized for having been illegally imported into the United States.299

If two appraisers agreed that the goods were worth $100 or less, the responsible customs officials would publish a notice for three weeks in a local newspaper, describing the goods and the circumstances of their seizure and instructing any would-be claimants to appear within ninety days.300 If anyone filed a claim with the collector and posted a bond within that period, the collector would hand the matter off to the United States attorney for the relevant district, “who shall proceed thereon in the ordinary manner prescribed by law”—that is, by launching an action in rem in court.301 But if no one submitted a timely claim and posted the required bond, the collector would simply sell the goods at a public auction.302

For more than a century, Congress continued to restrict this administrative procedure to low-value property. As late as 1978, federal customs statutes authorized administrative forfeiture only for property worth $2,500 or less.303 By 1990, however, Congress had raised the ceiling to $500,000, and some types of property (including cash) had been exempted from the ceiling altogether.304

Despite increasing the value of the property subject to administrative forfeiture, Congress has not given people any more time to file claims and post bonds. In 1866, indeed, Congress shortened the deadline from ninety days to twenty days,305 and the federal customs statutes have retained that deadline ever since.306 The modern customs statutes do require the government to take more steps to notify interested parties that the clock is ticking: in addition to requiring notice by publication, current law provides that “[w]ritten notice of seizure together with information on the applicable procedures shall be sent to each party who appears to have an interest in the seized article.”307 But interested parties still have only “twenty days from the date of the first publication of the notice of seizure” to file a claim and post a bond (thereby prompting the government to launch either civil or criminal forfeiture proceedings in court).308 If no one claims the property within the twenty-day deadline, “the appropriate customs officer shall declare the vessel, vehicle, aircraft, merchandise, or baggage forfeited, and shall sell the same at public auction . . . or otherwise dispose of the same according to law.”309 Ever since 1988, Congress has explicitly provided that “[a] declaration of forfeiture under this section shall have the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States.”310

In the 1970s and 1980s, this method of declaring forfeiture radiated from federal customs statutes into many other areas, because Congress piggybacked upon the customs procedures when enacting other forfeiture statutes.311 With respect to those other areas, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) has now made it somewhat easier for people to file claims (and thereby trigger judicial proceedings).312 Each federal agency that conducts administrative forfeitures under statutes covered by CAFRA must “make claim forms generally available on request,” and those forms must be “written in easily understandable language.”313 CAFRA also gave people more time to file claims; instead of having only twenty days from the first publication of notice of seizure, each interested party to whom written notice must be sent314 now has at least thirty-five days from the date that the notice is mailed to him personally.315 Likewise, CAFRA eliminated the requirement that claimants post a bond.316 But even after CAFRA, one expert suggests that as many as eighty percent of federal forfeiture proceedings are uncontested and are therefore handled administratively.317

Critics might question the constitutionality of ever allowing officials in the executive branch to issue a conclusive “declaration of forfeiture,” even when the forfeiture is not contested.318 By the very terms of current law, such declarations operate like judicial judgments.319 From one perspective, then, federal statutes purporting to let customs officers and other administrative officials declare authoritatively that property has been forfeited might be regarded as an unconstitutional attempt to vest “judicial” power in executive officials.

Chief Justice Roberts arguably lent some credence to this idea in a recent dissenting opinion about the powers of federal bankruptcy judges. Because those judges lack life tenure and the other structural protections required by Article III, past cases have recognized limits on the kinds of claims that Congress can authorize federal district courts to refer to bankruptcy judges for resolution.320 In Wellness International Network, Ltd. v. Sharif, the majority held that if the parties consent, bankruptcy judges can be authorized to adjudicate some claims of the sort that normally require Article III adjudication.321 But Chief Justice Roberts disagreed. He suggested that within the federal government, “the power to ‘render dispositive judgments’” is “the constitutional birthright of Article III judges”;322 with only “narrow exceptions,” Congress normally cannot authorize federal tribunals that lack the structural safeguards of Article III to render dispositive judgments adverse to private rights.323 According to Chief Justice Roberts, moreover, even the parties’ explicit consent cannot cure this problem and justify “the entry of final judgment by a non-Article III actor.”324

At first glance, one might think that current statutory provisions about administrative forfeiture raise a similar issue. Even if no interested parties object, perhaps Congress cannot authorize executive officials to issue “declaration[s] of forfeiture” that have the same legal effect as judicial judgments.

Of course, Chief Justice Roberts was writing in dissent, and his analysis might be incorrect even in the context of bankruptcy cases. In my view, both text and history do support reading Article III to restrict the types of entities that can exercise “judicial” power on behalf of the United States.325 But when parties consent to let a bankruptcy judge resolve their dispute, they need not be thought of as purporting to authorize “an exercise of judicial power outside Article III.”326 Instead of trying to confer “judicial power” on an actor who cannot receive it, the parties might be thought of as simply waiving their right to insist on an exercise of such power. Just as potential litigants waive their right to “judicial” adjudication when they opt not to file a complaint in the first place, or when they settle their claims out of court, or when they agree to binding arbitration, so too litigants may be able to consent to abide by the decision of a bankruptcy judge.327 In other words, perhaps the power that is uniquely “judicial”—the power that only true courts can exercise—is the power to adjudicate and authoritatively resolve disputes about certain kinds of private rights even without the consent of the purported right-holder.

Whatever the proper analysis of the question presented in Wellness, though, Chief Justice Roberts’s argument cannot readily be deployed against the federal laws that currently authorize administrative forfeiture. The essence of those laws is that when an executive official takes possession of property on the theory that it really belongs to the government, and when the official properly causes notice of the seizure to be directed to interested parties, people have only a limited period of time to dispute the official’s action. If someone files a timely claim, the laws do not purport to subject that claim to administrative adjudication; the dispute between the government and the claimant will instead be adjudicated in court. But if no claimants appear within the prescribed period, then the laws conclude that there is no dispute for anyone to adjudicate. Rather than casting executive officials in the role of judges, administrative-forfeiture laws simply establish a deadline for contesting the government’s assertion of ownership.

To be sure, such laws may sometimes allow the government to obtain clear title to property even though the responsible executive officials were wrong about the facts and the property had not really been used in a manner that triggers forfeiture. If adequate notice is directed to all interested parties, but no one claims the property within the prescribed period, then title vests in the government even if the former owner would have had a good basis for contesting the government’s position. This feature of administrative-forfeiture laws, however, does not distinguish them from various other statutes that establish deadlines for asserting legal rights against the government.328

Throughout American history, legislatures have enacted statutes that extinguish property rights belonging to owners who fail to take certain affirmative actions.329 Recording acts have that feature, yet have long been regarded as unexceptionable.330 The same is true of statutes of repose, which routinely extinguish interests belonging to people who fail to assert claims within the deadline prescribed by law. The law has long imposed deadlines for asserting property rights not only in connection with certain kinds of court proceedings (including probate cases,331 bankruptcy cases,332 prize cases,333 and other proceedings in rem334), but also in connection with events in the real world. For instance, title to land can be lost through the failure to contest someone’s adverse possession335 and rights in personal property can be lost through failure to claim property that the government believes to have been abandoned.336

Administrative-forfeiture laws do differ from some other statutes of repose in that their clocks are started by government action. Under modern case law, that feature imposes a burden on the government to try to identify potential claimants and to send them personalized notice of the need to act if they want to defend their alleged interests.337 At least at the federal level, though, the notification procedures required by current administrative-forfeiture laws and regulations appear to satisfy this requirement.338

Of course, even when personalized notice is directed to all interested parties, Congress presumably must give those parties a reasonable time to file claims. A statute purporting to make the executive branch’s determinations conclusive if no one challenges them within an hour after receiving notice might not differ meaningfully from a statute purporting to make the executive branch’s determinations conclusive without permitting any challenges at all. According to longstanding case law, though, “[a] limitations period is only too short if ‘the time allowed [to file a claim] is manifestly so insufficient that the statute becomes a denial of justice.’”339 While originalist research may not permit us to say exactly how short is too short, familiar aspects of current practice suggest that would-be claimants do not have to be given more than a month to respond to a personalized notice that the government has seized property and is planning to declare forfeiture. In judicial proceedings, at least, the Federal Rules of Civil Procedure currently give defendants only twenty-one days after service of process to serve an answer to the plaintiff’s complaint, upon pain of default.340 If that is presumptively long enough for a defendant to hire a lawyer, form a position about each of the plaintiff’s allegations, and identify all relevant affirmative defenses, then a similar period might be long enough for interested parties to decide whether to claim property that the government has seized.

Admittedly, statutes that let law-enforcement officials seize property on the theory that it now belongs to the government, and that excuse the government from having to prove the underlying facts unless the former owner protests, might well be bad ideas. The more valuable the property, moreover, the more one might think that further procedural safeguards would be worth their cost. If one were conducting a cost-benefit analysis in the style of Mathews v. Eldridge,341 one might conclude that the current system of administrative forfeiture raises substantial risks of erroneous deprivations; even when no claims are filed, requiring some review of the government’s position might improve accuracy enough to justify the added expense and delay. But even under modern procedural-due-process doctrine, the Mathews balancing test does not necessarily govern the constitutionality of the threshold requirement that someone must file a claim in order to trigger further procedures.342 And if Mathews does require the government to conduct some additional review even in the absence of a claim, the added review process would not necessarily have to occur in court. Whatever additional administrative safeguards the Due Process Clause might be understood to require, a system that establishes a deadline for contesting the government’s assertions of ownership, and that enforces the deadline by giving the government clear title to property that goes unclaimed despite adequate notice, cannot readily be said to vest “judicial” power in executive officials.

Conclusion

This Feature does not assert, in gross, that all aspects and all applications of modern forfeiture statutes are constitutional. But the three central characteristics of modern forfeiture statutes that I have considered—the fact that civil forfeiture proceeds in rem rather than in personam, the fact that claimants are not afforded the procedural protections that they would receive if they were criminal defendants, and the fact that the government’s assertion of ownership can become incontestable unless an interested party files a claim within the deadline for doing so—do not violate the original meaning of the Constitution as liquidated over time.

Still, the conclusion that these characteristics are constitutional does not mean that they are good.343 Media accounts are rife with horrifying stories about how forfeiture laws work in practice, especially at the local level.344

We might not muster much sympathy for people who plainly have committed crimes and who lose some of their property as a result. When criminals forfeit their ill-gotten gains, or even some of their pre-existing property, forfeiture laws are serving the useful purpose of “tak[ing] the profit out of the crime.”345 In many ways, moreover, forfeiture is a less costly form of punishment than incarceration. From the government’s standpoint, indeed, asset forfeiture is a source of revenue that can help the government fund needed programs without having to raise taxes.

But that very fact raises dangers, especially when the law permits enforcement agencies to retain some or all of the money that they raise through forfeiture.346 As critics have noted, letting enforcement agencies augment their own resources through forfeiture seems likely to affect both enforcement priorities and enforcement methods. A famous example dates back to the early 1990s: “Florida drug agents working the I-95 cocaine corridor reportedly try to stop suspected drug buyers on their way south, while they still have forfeitable cash,” rather than when they are returning north with drugs that have no value to law-enforcement agencies.347

The ease of forfeiture, moreover, must tempt police departments to use it even when they cannot be sure that a crime has been committed. For instance, suppose that a police officer stops a car and finds large amounts of cash. These facts hardly suffice to prove that the driver is engaged in the drug trade, but they do raise suspicions. The department’s policymakers, moreover, may encourage officers to act on those suspicions by seizing the cash and launching the forfeiture process. Departments may reason that drivers who are indeed involved in the drug trade will walk away from their cash rather than invite further investigation, while drivers who are innocent can ultimately get their property back. In this way, departments may be able to persuade themselves that the forfeiture process will sort the guilty from the innocent and ensure that justice is done.348

Seizure on mere suspicion, though, imposes obvious costs on people who are carrying cash for legitimate reasons. Those people, moreover, are likely to be disproportionately poor and powerless—people who make important purchases with cash because they do not have checking accounts, and who cannot readily hire lawyers to contest the government’s confiscation of their money.349 Every time such people walk away from their property because getting it back would cost too much, or because they fear that the government will erroneously charge them with crimes if they fight the forfeiture, the system is wronging people whom it should be protecting.

Those systemic wrongs would occur even if all police officers and departmental policymakers were completely honest. But no large-scale program will be administered perfectly, and there are special dangers in a large-scale program that asks a disparate set of officers to seize cash and other hard-to-trace items. To the extent that asset-forfeiture programs invite corrupt decisions either by individual officers or by departmental policymakers, the programs’ costs grow. Norms of honest policing are important, and the temptations created by repeated seizures of cash have some potential to undermine those norms.

I do not know how to assess the magnitude of any of these costs, or how to tell whether forfeiture laws have enough offsetting benefits to justify them. But even after the reforms of the last two decades, it is certainly possible that forfeiture laws do more harm than good.

Nonetheless, the judiciary is not the place for policy debates of this sort. If legislatures choose to authorize in rem forfeiture proceedings as a means of enforcing valid statutory restrictions, originalists should not assume that the Constitution stands in the way.