The government’s authority to seize property in this way is not inherent, but is generally established by statute. It is constrained by those authorizing laws and by the Constitution. The expansion of forfeiture activity has not gone on without constitutional challenge. The Supreme Court heard at least half a dozen forfeiture cases during the ’90s, but its rulings have not done much to rein in the practice.
Forfeiture takes two distinct forms: criminal and civil.
Criminal forfeiture operates as punishment for a crime. It therefore requires a conviction, following which the state takes the assets in question from the criminal.
Nearly all contemporary forfeiture is civil. Civil forfeiture rests on the idea that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the property, or the thing involved in some illegal activity specified by statute. Unlike criminal forfeiture, civil forfeiture does not require a conviction or even an official criminal charge against the owner. This is the source of its attractiveness to law enforcement and its threat to those concerned about abuse or circumvention of constitutional protections.
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