abstract. Although civil asset forfeiture enjoys an impressive historical pedigree, in recent decades, it has mutated into something else entirely. Traditionally, civil forfeiture was justified as a particularized law-enforcement mechanism, designed to punish a specific wrongdoing. Today, however, civil forfeiture functions frequently as a fundraising tool, deployed to supplement government budgets. This Note highlights that metamorphosis and argues that contemporary civil forfeiture—forfeiture that is motivated by profit—is unconstitutional for a novel reason: it is a taking without just compensation.

author. J.D. 2025, Yale Law School; A.B. 2017, Princeton University. For illuminating exchanges and invaluable insights, I am grateful to Professors Ian Ayres, Robert L. Glicksman, Robin L. Juni, Nicholas R. Parrillo, Claire Priest, Jed Rubenfeld, Louis S. Rulli, and Sarah Stillman. For inspired editing and incisive input, my thanks also to Julia Nichols, Luke Schlobohm, and the staff of the Yale Law Journal, including, in particular, Fiona Furnari and Kevin Z. Yang, along with Beatrice L. Brown, Chase Hinman, Lily Moore-Eissenberg, Deja R. Morehead, and Shreya Minama Reddy. Any errors or omissions that remain—as well as any views contained herein—are to be attributed only to me.

I dedicate this Note in loving memory of my late grandmother.

Punished for what
he couldn’t understand,

or is punishment
even an applicable word?

Deodand, I think,
picturing the blood—

that principle of old English law
where the rain-soaked bough

which crushed the ox driver’s spine
must be splintered and scattered,

the waterwheel whose paddles
drowned the bather
must be salted and burned.

A thing forfeited or given to God
the text says.

To believe such a thing
is to imagine the world
as two natures.1

Introduction

On February 27, 2016, two sheriff’s deputies stopped a black Suzuki Forenza on North 32nd Street in Muskogee County, Oklahoma.2 The deputies effected the traffic stop originally because of a broken taillight, but a police K-9 provided a positive alert for drug contraband.3 They conducted a search and uncovered over $53,000 in cash stashed in the vehicle.4 When questioned, the driver, a forty-year-old man, offered “inconsistent stories” and was “unable to confirm the money was his.”5

After six hours of interrogation, the deputies suspected that the money represented the proceeds of drug sales.6 That night, they seized all of the driver’s cash, and, two weeks later, prosecutors sought to appropriate it permanently.7 They attempted to do so through a civil asset-forfeiture action, a process that allows police and prosecutors to take ownership of private property by filing a civil suit against the property itself. Civil forfeiture, as its name implies, is not a criminal proceeding, and a criminal conviction is not a prerequisite to confiscating the property.8 Accordingly, prosecutors need only prove by a preponderance of the evidence that the property at issue is connected to criminal activity.9 Justice, it seemed, was imminent for this drug-trafficking driver.

In reality, the police had just taken money from a nonprofit intended to support a school in Burma and an orphanage in Thailand.10 The driver, Eh Wah, a Burmese refugee and U.S. citizen, was a volunteer for a Christian rock band fundraising through sales of tickets that were ten to twenty dollars each.11 Much of what the police took represented revenue from the band’s concerts.12 As for the “inconsistent stories,” Wah could not adequately explain the source of funds to the sheriff’s deputies because of his limited proficiency in English.13 And when the band’s leader tried to explain over the phone that Wah was part of a charity music group touring through the United States, one of the deputies stated, “You are wrong.”14

The night of the traffic stop, police released Wah and allowed him to drive off to a different state with nothing but a handwritten “property receipt” for the seized cash and a traffic warning for a “defective vehicle.”15 Despite the purported positive alert from the police dog, officers found no drugs or drug paraphernalia in Wah’s car.16 Nor did they conduct further investigation into Wah’s purported crimes after the night of the stop.17 In Oklahoma, police departments can keep up to 100% of the funds they forfeit, creating a perverse incentive to seize and forfeit as much as possible.18

In light of these facts, the Institute for Justice filed papers to reclaim the cash on Wah’s behalf.19 Within hours, the district attorney dismissed the case and returned the money to Wah.20 But the district attorney also stated that “based on what they had and what they were presented with,” the deputies had “acted appropriately.”21 He believed that law enforcement could not have done anything differently for Wah—the justice system, he claimed, had worked.22

In a sense, it had. Wah and his band got their property back from the police. But many others never do. Take, for instance, the story of Michael Albin. After serving two tours in Vietnam, Albin retired to South Carolina, where he became the proud proprietor of Putters Restaurant and Lounge in Myrtle Beach.23 Unfortunately, in the late aughts, Putters became the site of six burglaries, so Albin moved into a motor home in the restaurant’s parking lot.24 But when Albin unknowingly invited two undercover police officers to smoke marijuana with him in the RV, they seized approximately $17,000 in cash, along with the motor home itself.25 Again, police brought a civil-forfeiture action to finalize the confiscation.26

South Carolina, though, had codified some limitations to civil forfeiture. Most pertinent to Albin, state law prohibited the forfeiture of a vehicle on the basis of its use during illegal drug activity unless it contained at least one pound of marijuana or other prohibited substances.27 Police had found only four ounces in Albin’s motor home.28 But this statutory restriction posed no problem for prosecutors, who argued that, under a separate statutory provision, Albin’s home was forfeitable because it served as a container of controlled substances.29 On July 28, 2011, the trial court agreed and allowed police to take title to Albin’s “container.”30 On June 12, 2013, the South Carolina Court of Appeals reversed, holding that the lower court’s logic would “render the one-pound weight limitation” meaningless.31 But the vindication came too late. One year and one day before the decision, on June 11, 2012, Albin had died, without the “container” he called home.32

Wah’s and Albin’s stories are by no means unique in the United States. On July 19, 2012, a militarized police unit, equipped with riot gear and a battering ram, raided the Philadelphia home of Mary Adams, a sixty-eight-year-old woman, and her seventy-year-old husband, Leon Adams.33 The officers then arrested their son, Leon Adams, Jr., for allegedly selling marijuana to a confidential informant.34 A month later, the police returned, seeking to forfeit the entire house because Leon, Jr. had made the twenty-dollar sale on the porch of his parents’ house.35 In 2017, the Wyoming Highway Patrol took more than $90,000 from Phil Parhamovich after a routine traffic stop because he was intimidated into signing a waiver forfeiting the cash amount, even though law enforcement never found any evidence of illegal activity and never accused or charged him of any crime (except a $25 traffic citation).36 The list of baseless civil-forfeiture proceedings targeting cash, homes, and livelihoods is practically endless.37

***

Two relevant constitutional provisions limit the government’s ability to confiscate property: the Due Process Clause38 and the Takings Clause.39 But these apparent restrictions have not yet been interpreted to limit civil forfeiture, in large part owing to forfeiture’s impressive historical pedigree.

The American regime of civil forfeiture traces its roots to England, where statutory law allowed forfeiture of objects used in violation of customs and admiralty laws.40 Adopting this English practice, the First Congress similarly permitted law enforcement to proceed in rem to forfeit property.41 These laws followed the fiction that the property itself was guilty of the customs or maritime offense charged,42and accordingly, “no personal conviction of the offender [was] necessary to enforce a forfeiture in rem.”43 On some accounts, historical civil forfeiture was originally “justified by necessity,” for the responsible party was located beyond the United States’s jurisdiction.44 For example, if a foreign owner of goods fraudulently undervalued import merchandise in violation of customs law, customs officials and prosecutors might forfeit the cargo on the justification that the foreign owner was out of reach for criminal action.45

That history might mean that today’s civil forfeiture, often wielded against property whose owners are within easy reach, is a violation of due process. But there is disagreement on this point.46 The existing literature instead finds common ground in identifying a different historical justification for civil forfeiture: its use as a law-enforcement mechanism.47 Indeed, it was by reference to this use—what this Note broadly refers to as the “enforcement” purpose—that the Supreme Court held that “forfeiture schemes are not rendered unconstitutional” as a “taking for government use of innocent parties’ property without just compensation.”48 This enforcement purpose, described further in Section II.B, authorized the government to confiscate property as a form of punishment, rather than as incident to its “power of eminent domain.”49

It would seem, however, that today’s civil forfeiture is worlds apart from its ancestral analogue. As various sitting Justices have recognized, civil forfeiture is no longer primarily an enforcement endeavor.50 Instead, it has become a government fundraising tool. According to one study, 40% of law-enforcement agencies indicated that “civil forfeiture [is] a necessary” part of their budgets.51 In Washington, D.C., the police at one point crafted an operating budget that took into account “millions of dollars in anticipated proceeds from future civil” forfeitures.52 And in one Texas county, police officers received bonuses of up to $26,000 from forfeiture proceeds.53 These perverse incentives fuel indiscriminate forfeitures of whatever law enforcement can find. And indeed, the numbers confirm the power of these incentives: in 2018, forty-two states, the District of Columbia, and the federal government collectively obtained over $3 billion worth of private property through civil-forfeiture proceedings.54 Between 2002 and 2018, just twenty states, in conjunction with the federal government, took in over $63 billion from civil-forfeiture actions.55

This Note argues that today’s civil forfeiture—which places the desire for profit above the duty of policing—is unconstitutional for a novel reason: it is a taking without just compensation. To be sure, there are state-based reforms underway,56 and statutory innocent-owner defenses (i.e., defenses against forfeiture premised on the ground that the property owner had no knowledge of the underlying criminal activity) have existed for years.57 Advocates,58 judges,59 and academics60 have produced a significant body of litigation and literature attempting to curb the pernicious effects of civil forfeiture. This Note recognizes these efforts and explains why the recategorization of contemporary civil forfeiture as a taking without just compensation might be a superior legal tool (or at least another arrow in the quiver) in the battle against civil forfeiture.61

This Note proceeds in four Parts. Part I provides legal background on the two most relevant avenues through which the government confiscates property—forfeiture and takings—and the existing jurisprudence distinguishing between them. Part II considers the evolution of civil forfeiture and argues that the practice has mutated from its traditional form premised on law-enforcement goals (what this Note refers to as “historical civil forfeiture”) to a certain modern form that centers on a profit motive to the detriment of an enforcement purpose (what this Note refers to as “contemporary civil forfeiture”).62 Building on that discussion, Part III develops the core of this Note’s argument: contemporary civil forfeiture is nothing more than a taking in disguise. Part III also operationalizes this new theory by proposing an analytical framework that can reveal when forfeiture hides a profit-motivated public-use purpose. It then clarifies why revenue-generating forfeiture is not simply a tax and why the new theory does not also subject taxes and other forms of state-sanctioned property deprivations to takings scrutiny. Next, Part IV highlights the stakes of this theory and demonstrates why constitutional intervention will not disrupt existing efforts toward policy reform. The Note then concludes.