_- CrimP 17

Question 1

FORFEITURE ACTIONS

Answer 1

8th amendment

Actions for forfeiture are brought directly against property and are generally regarded as quasi-criminal in nature.
Certain constitutional rights may exist for those persons whose interest in property would be lost by forfeiture.

Question 2

RIGHT TO PRE-SEIZURE NOTICE AND HEARING

Answer 2

The owner of personal property (and others with an interest in it)
is not constitutionally entitled to notice and a hearing before the property is seized for purposes of a forfeiture proceeding.
A hearing is, however, required before final forfeiture of the property.
Where real property is seized, notice and an opportunity to be heard is required before the seizure of the real property unless the government can prove that exigent circumstances justify immediate seizure.

Question 3

Forfeiture Actions MAY BE SUBJECT TO EIGHTH AMENDMENT

Answer 3

General Rule:
The Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines.
Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not.

Question 4

Penal Forfeitures

Answer 4

If a forfeiture is penal and the Clause applies, the forfeiture will not be “excessive” unless grossly disproportionate to the gravity of the offense (for example, forfeiture of $357,144 was found dispropor- tionate to the crime of failing to report that that sum of money was being transported out of the country).

Question 5

Civil In Rem Forfeitures

Answer 5

Civil in rem forfeitures generally are not subject to the Excessive Fines Clause. However, forfeitures made under the federal drug forfeiture statute are penal and therefore are subject to the Clause.

Question 6

Monetary Forfeitures

Answer 6

Monetary forfeitures (for example, forfeiture of twice the value of illegally imported goods) brought in civil actions generally are not subject to the Eighth Amendment.

Question 7

PROTECTION FOR “INNOCENT OWNER” NOT REQUIRED

Answer 7

The Due Process Clause does not require forfeiture statutes to provide an “innocent owner” defense (for example, a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes), at least where the innocent owner voluntarily entrusted the property to the wrongdoer.