Civil asset forfeiture and the 14th Amendment

Factual Questions
1

Why doesn’t the 14th Amendment apply to civil asset forfeiture cases?

Thanks,
Rob

2

Are you referring to any clause in particular? The Due Process Clause, presumably? It does. The amount of “process” that is “due” is reduced in asset forfeiture cases because they do not expose the defendant to the risk of a criminal penalty. The property owner, that is, rather than whatever property is the named defendant.

3

I understand that the defendant in the case is the property, but how is separating you from that property not a violation of the due process clause in the first place?

Thanks,
Rob

4

The short answer is, it most certainly should apply, because civil asset forfeiture is flagrantly unconstitutional. But for some reason civil asset forfeiture has fallen into a blind spot in the justice system. Like how the IRS gets to treat you as guilty until proven innocent. Nobody can provide a compelling reason why this should be allowed, but somehow the practice has never been squashed by the courts.

5

The reason I asked is that it’s my understanding that IS constitutional, somehow, but I don’t understand the logic behind it.

I also don’t believe that your comment about the IRS is accurate. IIRC, in IRS administrative hearings, you have to prove that you don’t owe, but if you appeal, the burden of proof is on them, the catch being that you have to cough up the dough first.

Rob

6

Because it isn’t. If you want a more nuanced answer, there are two ways to look at it.

(1) Asset forfeiture became a much more widely used tactic during the 80s and 90s (partly due to the Reagan-era Comprehensive Crime Control Act) and most SCOTUS challenges to them were heard by the Rehnquist Court. Rehnquist’s general view was that the country was going to hell in a handbasket and that it should do whatever it could to expand the powers of law enforcement agencies. So, it found that all sorts of things that were previously unconstitutional (or so presumed) were actually necessary and proper powers of government to fight crime.

(2) Civil forfeiture has a long and storied history dating back to the common law of England and Wales and because it’s been around for a really long time courts don’t want to get rid of it. Also, they’re useful. Also, it’s Congress’ job to limit or eliminate them (which it does, from time to time, with limited success.)

If it didn’t exist, and I was a congressional aide or Justice Department lawyer asked for my opinion on constitutionality, I’d laugh at you. But they do.