FORFEITURE
The involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime. The loss of a corporate charter or franchise as a result of illegal-
ity,malfeasance, or NONFEASANCE. The surrender
by an owner of his or her entire interest in real
property, mandated by law as a punishment for
illegal conduct or NEGLIGENCE. Under old ENG-
LISH LAW, the release of land by a tenant to the
tenant’s lord due to some breach of conduct, or the
loss of goods or chattels (articles of PERSONAL
PROPERTY) assessed as a penalty against the per-
petrator of some crime or offense and as a recom-
pense to the injured party.
Forfeiture is a broad term that can be used to
describe any loss of property without compensa-
tion. A forfeiture may be privately arranged. For
example, in a contractual relationship, one party
may be required to forfeit specified property if the
party fails to fulfill its contractual obligations.
Courts are often called upon to resolve disputes
regarding a forfeiture of property pursuant to a
private contract. They may examine these cases to
see whether they are fair and not the result of
duress, deception, or other nefarious tactics.
The forfeitures that inspire the most discus-
sion in the U.S. are those that are exercised by
the state or federal government. Congress and
state legislatures maintain statutes that allow law
enforcement to seize property on suspicion of
certain criminal activity. The property can be
forfeited to the government upon conviction. In
many cases, forfeiture to the government occurs
without criminal prosecution.
The general concept of forfeiture in the
United States can be traced to the English COM-
MON LAW, or court decisions. English courts rec-
ognized three types of forfeiture: ESCHEAT upon
attainder, deodand, and statutory forfeiture.
Under the doctrine of escheat upon attainder, a
person’s property reverted to the government
upon that person’s conviction for a felony or
TREASON. This doctrine was premised on the
theory that the sovereign government possessed
a superior property interest.
The doctrine of deodand, or guilty property,
allowed English courts to strip a person of prop-
erty if the property was involved in a certain
offense. This doctrine allowed a court to seize
property regardless of the owner’s culpability.
For example, if a horse caused the death of a
person, the owner would lose that horse, even if
he had been completely blameless.
Statutory forfeiture, or forfeiture based on
written laws, was the only kind of English forfei-
ture recognized in the American colonies. In
other words, the colonies did not order the for-
feiture of property unless it was required pur-
suant to a law passed by the legislature.
However, the written laws in the colonies sus-
tained the concept of deodand, and this concept
survives to the present day.
Although forfeiture laws have existed in the
United States since the colonial period, they
have not always been favored. Early cases of for-
feiture usually involved extraordinary circum-
stances, such as the seizure of pirate ships or
warring ships. After the Civil War, forfeitures
were used for tax-revenue violations, but gov-
ernment-imposed forfeiture was a rarity.
In 1970, Congress enacted the Comprehen-
sive Drug Abuse Prevention and Control Act (21
U.S.C.A. § 881), also known as the Forfeiture
Act. The Forfeiture Act authorized federal pros-
ecutors to bring civil forfeiture actions against
certain properties that were owned by persons
who had been convicted in federal court of deal-
ing drugs. This act was seldom used because it
limited forfeiture to the property of persons
who had been convicted of participating in con-
tinuing criminal enterprises.
In 1978, Congress amended the Forfeiture
Act to allow the forfeiture of anything of value
used or that was intended to be used by a person
to purchase illegal drugs (Psychotropic Sub-
stances Act of 1978 [Pub. L. No. 95-633, tit. III,
§ 301(a), 92 Stat. 3768, 3777 (codified as
amended at 21 U.S.C.A. § 8821(a)(6))]). This
change expanded the Forfeiture Act to allow the
orfeiture of all proceeds and property that were
traceable to the purchase of an illegal drug.
Under the 1978 amendments, the federal govern-
ment was authorized to proceed in rem against
property. In rem forfeiture actions are taken
against the property itself, not against its owner.
In such proceedings, the guilt or innocence of the
property owner regarding any criminal activity is
irrelevant. Thus, under the Forfeiture Act, the
government may remove property from persons
it suspects of a crime, without ever charging
them with a crime. The basis of this kind of for-
feiture is traced back to the deodand doctrine of
the English common law.
The Forfeiture Act was again amended in
1984, when the Comprehensive CRIME CON-
TROL ACT (Pub. L. No. 98-473, § 306, 98 Stat.
1837, 2050 [codified as amended at 21 U.S.C.A.
§ 881(a)(7)]) expanded it to authorize the in
rem forfeiture of real property, or land and
buildings. Under the 1984 act, federal authori-
ties may seize any real property that is pur-
chased, used, or intended to be used to facilitate
narcotics trafficking. Although the LEGISLATIVE
HISTORY of the 1984 act suggests that Congress
intended real property forfeiture to apply only
to drug manufacturing or storage facilities,
courts have construed the act to allow the
seizure of any real property, including fraternity
houses, hotels, ranches, and private residences.
Furthermore, courts have allowed real property
forfeiture regardless of whether the property
was used to store or manufacture drugs.
Forfeiture under the Forfeiture Act begins
with either the constructive or actual seizure of
property after a district court has issued a war-
rant. This warrant must be based on a reasonable
belief that the property was used in a crime sub-
ject to forfeiture, but this reasonable belief can be
based entirely on HEARSAY and CIRCUMSTAN-
TIAL EVIDENCE. After the property is seized, the
court holds it until the case is resolved.
Forfeiture proceedings may be either crimi-
nal or civil. If the government seeks forfeiture
pursuant to criminal charges, it must establish
the defendant’s guilt BEYOND A REASONABLE
DOUBT. If acquitted, the defendant is entitled to
retrieve the seized property.
To initiate a civil forfeiture proceeding, the
government need only show reasonable grounds
to believe that the property was used in, or
derived from, certain prohibited activities. If the
defendant fails to rebut the showing of PROBA-
BLE CAUSE with sufficient evidence, the govern-
ment may keep the property. At trial, the gov-
ernment’s standard in a civil forfeiture is proof
by a PREPONDERANCE OF THE EVIDENCE, a
