for Part I click here
 

IV. Possible statutory interpretation challenges under federal forfeiture law

The two topics discussed in the following section reflect specific provisions of 21 U.S.C. § 881, but the analyses may have implications for other statutory regimes. They concern the meaning of the innocent owner provisions, which may be interpreted to impose upon owners affirmative duties to prevent the involvement of their property in illegal activities, and of the provisions permitting forfeiture of property used or intended for use "to facilitate" drug crimes, which define the required connection between the prohibited action and the property subject to forfeiture.

A. The innocent owner defense

Decided in 1996, Bennis v. Michigan⁽¹⁾ dealt an apparent death blow to a hope sustained by forfeiture opponents that (substantive) due process would place some limit on the forfeiture of property from innocent owners. Tina Bennis contested the state-law forfeiture of her joint interest in a family car in which her husband had been caught with a prostitute, arguing that due process afforded her a defense as an innocent owner, even though the statute provided none and explicitly disclaimed ignorance as a defense. She based her argument in part on dictum from a case decided twenty years before. In upholding the seizure of a yacht under a Puerto Rico statute containing no innocent owner provision, the Court in Calero-Toledo v. Pearson Yacht Leasing Co.,⁽²⁾had stated:

It . . . has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive.⁽³⁾

Unlike the statutes at issue in Calero-Toledo and Bennis, § 881 contains several innocent owner provisions. Thus, the issue cases under that statute present is not whether due process requires the creation of such a defense where none is provided, but rather, what the nature of the defense provided is. In glossing the statutory language, however, many courts have been guided by the now-disavowed constitutional dictum in Calero-Toledo, leading to the construction that to prevail on the innocent owner defense, an individual must demonstrate not only a lack of actual consent to the illicit use of his property, but also that he took all reasonable measures to prevent the misuse of the property. Some courts require this showing even where the claimant clearly establishes his ignorance of the wrongdoing. Whether explicitly or implicitly, then, the constitutional dictum regarding innocent owner defenses has bled over into the statutory defense, leading courts to promulgate at least three problematic glosses on the statute: first, that a claimant may not simply establish a lack of subjective consent, but must show affirmative attempts to prevent the misuse of his property; second, that he must show not just some reasonable efforts to prevent misuse of his property, but must show all reasonable efforts, and third, that he may have to show that he was entirely ignorant of the wrongdoing, and yet at the same time, be required to show that despite his ignorance, he took affirmative steps to prevent misuse of his property. If these harsh constructions can be stripped away, either as pure matters of statutory interpretation, or because they rest on constitutionally suspect ground, then the statutory innocent owner defense may offer a great deal more solace that it does today.

1. Analysis

The first place that courts should look to interpret the breadth of the innocent owner defense is to the statutory language. Subsections 881(a)(6) and (a)(7) both negate the forfeiture of otherwise forfeitable property "to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner" (emphasis added). Section 881(a)(4)(C), which was added to the statute after the other two sections, indicates that conveyances shall not be forfeit "to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner" (emphasis added).

a. "Knowledge"
 

Courts are not agreed as to whether the term "knowledge" should require the actual knowledge of the claimant, or whether constructive knowledge may be sufficient. Several court have held the statute to require actual knowledge.⁽⁵⁾ At least one court, however, has held that even under § 881(a)(7), which does not contain the language, "without . . . willful blindness," a claimant who is willfully blind cannot escape forfeiture by reason of his ignorance.⁽⁶⁾ While it is true that the "willful blindness" standard is in effect a method of inferring knowledge,⁽⁷⁾

to read a requirement of the absence of willful blindness into the word "knowledge" appears to be wrong as a matter of statutory construction. Were this interpretation correct, Congress would have had no need to add the term "willful blindness" in section (a)(4), as the term "knowledge" there would already have included it. Congress clearly could have used consistent terminology had it so chosen; after all, Congress explicitly modeled the innocent owner provision in section (a)(7), enacted in 1984, on that of section (a)(6), enacted in 1978,⁽⁸⁾ and Congress could have adopted the language in adding the innocent owner provision of (a)(4)(C) in 1988. Unfortunately, there is no legislative history for the 1988 amendment, and thus no record explanation for the difference in language.⁽⁹⁾

Nonetheless, the inclusion of "willful blindness" as a separate condition from "knowledge" in (a)(4)(C) should support the position that "knowledge" means actual knowledge.

b. "Willful blindness"

"Willful blindness" is found when an owner deliberately closes his eyes to what otherwise would have been obvious and his acts or omissions show a conscious purpose to avoid knowing the truth.⁽¹⁰⁾ As already noted, this may be a way of inferring knowledge.⁽¹¹⁾ In fact, the Third Circuit has held that failure to prove lack of willful blindness under § 881(a)(4) simultaneously amounts to a failure to prove lack of knowledge.⁽¹²⁾ However, as argued above, because of the statutory language, willful blindness should be an issue only with regard to forfeitures of conveyances and should not be read as a requirement for other forfeitures.

c. "Consent"
 

The term "consent" is defined in common parlance as "compliance or approval, especially of what is done or proposed by another."⁽¹³⁾ Perhaps because consent can imply relative passivity, courts have typically required a claimant to carry his burden of proof with regard to consent by doing more than simply state his subjective objection to the illegal use. (As a practical matter, because he bears the burden of proof, a property owner should always present any objective evidence indicating his lack of consent in order to bolster his naked assertion in the eyes of the fact finder.) But, courts have gone further, in essence establishing a presumption that a claimant consented to use of his property unless he shows affirmative steps that were taken to prevent the activity.⁽¹⁴⁾ Several courts have expressly derived this requirement of affirmative effort from the dictum in Calero-Toledo. ⁽¹⁵⁾ Consequently, the standard is not even limited to good faith efforts; the claimant must show that he made all reasonable efforts.⁽¹⁶⁾

Some courts have at least held that this "reasonable" effort is to be judged by comparison to the reasonable person of claimant's abilities and situation, inserting some level of subjectivity.⁽¹⁷⁾ This analysis leads to widely varying results, dependent in the end on the juries' or courts' sympathies.⁽¹⁸⁾

d. Conjunctive or disjunctive requirements

The innocent owner defense also requires courts to determine whether the

knowledge and consent requirements are to be disjunctive or conjunctive. Some courts have interpreted the phrase "without knowledge or consent" to allow an owner to prevail either if he was ignorant of the unlawful activity involving his property, or, if he had knowledge of the activity, if he did not consent to that unlawful use, usually as demonstrated by his efforts to prevent the involvement of his property in prohibited activity.⁽¹⁹⁾ The Second Circuit, a major proponent of this interpretation, reasoned that requiring a claimant to disprove both knowledge and consent renders the phrase "or consent" superfluous because a person without knowledge of illegal activity or proposed illegal activity cannot consent to it.⁽²⁰⁾ Other courts have nonetheless taken the position that to be an innocent owner, one must demonstrate both that one was ignorant of the activity and yet that one also did not consent to it, the latter requiring proof that one undertook all reasonable efforts to prevent it.⁽²¹⁾

2. Evaluation

Under current case law, litigation of the innocent owner question turns on a determination of what efforts were reasonable. An individual litigant may benefit is he can convince the court that the Calero-Toledo dictum is not the necessary gloss for the statutory language of "consent." The legislative history does not indicate that Congress intended to codify that dictum, which undoubtedly raised the bar for claimants who already bear the burden of convincing a fact finder that they did not consent to use of their property for prohibited ends. Because of the burden of proof, claimants clearly should put forth any evidence of efforts that manifest their subjective nonacquiescence, but disassociating the statute from Calero-Toledo should help persons who may not have done "all" that a fact finder believes to be reasonable, but enough that he believes that the claimant did not intend to consent.

In mounting an argument against the Calero-Toledo gloss, a claimant can argue that the plain language does not require affirmative efforts, that no legislative history indicates an intention to impose this obligation, and that to the extent that courts believed that such a construction was necessary to avoid violating due process, that has been discredited by Bennis. The trickiest part of this argument, however, is that the last prong indicates that Congress could have enacted even harsher requirements for innocent owners (or not permitted the defense at all). Thus, it may not be a sufficiently compelling reason for courts to opt now for a more liberal construction if the statutory language permits but does not compel it.

A second troubling issue is the seizure of commercial property because of illegal activity occurring there, where the government opposes the claimant's innocent owner defense on grounds of "constructive consent." This term has been used by at least one U.S. Attorney, with regard to the seizure of a Houston hotel where illegal drug transactions allegedly were occurring in the parking lot and possibly by individual patrons in their rooms. Of course, the statute permits the seizure upon the use of the premises for illegal drug activity, and places the burden on the owner to qualify for the innocent owner defense. Thus, the government is really arguing that the owner cannot prove that he did not consent to the use, because he failed to take all steps recommended to him by police. Under the existing case law, this might be otherwise phrased as a contention that the owner did not take all reasonable steps to prevent the illegal use of his property because he did not follow all police recommendations.

One can clearly challenge such a seizure on grounds that the owner's efforts were in fact reasonable. The outcome of such a case is likely to depend in part on the sympathetic personality of the claimant, however, as well as the fact finder's attitude about police. As a matter of policy, there are several arguments why "constructive consent" should not be presumed merely because of the failure to do everything that police suggest. First, as a practical matter, a presumption of reasonableness would increase police power to fill their own coffers through forfeitures, for they could ask a property owner in a crime-ridden area to do virtually anything, and if he did not comply, seize his property. This could well transfer police scrutiny from the activities of criminals to the activities of property owners. Even if police did not abuse this ability to create conditions justifying forfeiture, they could abdicate their own policing responsibilities by requiring private owners to undertake tasks that police would normally perform, such as requiring them to hire additional security patrols. This would mean that those with fewer economic resources--perhaps even as a result of a decline in business caused by rampant crime, or by the restrictions that the police imposed on them--would be most likely to lose their businesses by being unable to afford to control the crime in the way police suggested. It could also encourage vigilantism, a far cry from the institution of social order. Several courts have already indicated that private property owners are not required to take over police obligations, for similar reasons.⁽²³⁾

Finally, there is a not insignificant chance that implementing measures suggested by law enforcement to deter prohibited activity could subject the property owners to liability under anti-discrimination statutes. In the Houston case, for example, the police suggested that the hotel owners screen their patrons and refuse to rent to various people, including to people with local addresses. Since police often use racial characteristics as part of drug dealer profiles, or since owners of property in high crime areas may find that their ordinary client-base is made up of many minorities, "screening" for possible criminals may easily deteriorate into a refusal to serve minorities. In the end, each of these arguments indicate that the recommendations of police are not conclusively or even presumptively reasonable and thus that failure to carry them out does not indicate consent to the involvement of one's property in prohibited activity.

B. Property-conduct nexus

In cases under § 881 and similar statutes, the government may seek forfeiture of property that goes far beyond the well-publicized examples of drug smugglers' boats or even the homes they have purchased with the proceeds of their crimes. Defining the required connection between the prohibited conduct and the property sought to be forfeit is thus crucial to the outcome of many forfeiture proceedings. The first place to look to answer this question is the language of the statute itself. In 21 U.S.C. § 881, the source of greatest breadth and potential ambiguity is the language in subsections (a)(4),(6) and (7) implicating property that "facilitates" prohibited activity. ⁽²⁴⁾ Specifically, the statute permits forfeiture of any conveyance used or intended for use "to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment" of prohibited substances and the raw materials or equipment used in their manufacture.⁽²⁵⁾ Similarly, it permits forfeiture of real property used or intended for use "in any manner or part, to commit, or to facilitate the commission" of a felony drug violation.⁽²⁶⁾ And, it permits the forfeiture of any money, securities, or negotiable instruments "used or intended to be used to facilitate any violation of this subchapter."⁽²⁷⁾

1. Statutory language

These three provisions of § 881 were added at different times and do not contain identical language. For example, § 881(a)(6) requires use or intent to facilitate, while §§ (a)(4) and (a)(7) modify this to permit forfeiture of property that "in any manner" facilitates violation. Although courts have sometimes drawn distinction between the section on the basis of this language,⁽²⁸⁾ they have largely given similar meaning to all three sections.

It is very hard to wring a limiting construction out of the word "facilitate." The dictionary defines it to mean " to make easier or less difficult." Circuit courts, following this logic, have indicated that the item need not be essential to the transaction in order to be forfeit under the statute.⁽²⁹⁾ By contrast, in his dissent in Bennis v. Michigan, Justice Stevens implicitly argued against a broad notion of facilitation, endorsing a definition much closer to one of necessity,⁽³⁰⁾ and ultimately espousing forfeiture only of clear instrumentalities of the crime. The Supreme Court as a whole has apparently never explicitly defined the term "facilitate" in any context. However, the Court may be moving toward an understanding of "facilitate" in the forfeiture context which is closer to that of Justice Stevens. In footnote 9 of the majority opinion in the recent case of United States v. Bajakajian,⁽³¹⁾ a case involving a criminal forfeiture for a currency reporting offense under a statute permitting on its face forfeiture of any property "involved in" the offense of conviction, the court stated that currency which was "the subject of the crime of failure to report" was not an instrumentality of that crime. In so doing, it reasoned, "Cash in a suitcase does not facilitate the commission of that crime as, for example, an automobile facilitates the transportation of goods concealed to avoid taxes. In the latter instance, the property is the actual means by which the criminal act is committed." Id., n. 9 (citations omitted). Thus, the Court seemed to imply that something which facilitates a crime is an instrumentality of that crime, and equated instrumentalities with the actual means by which crimes are committed. The transportation case with which it compared Bajakajian was J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505 (1921), to which Justice Stevens had also made reference in Bennis, noting that the statute there involved made transportation an element of the offense and thus made the car (or some other instrument of transport) clearly necessary to its commission. How much weight one can place on the Bajakajian statement is questionable. It is clear dictum, as the Court made it only after holding that whether or not an item is an instrumentality is irrelevant to criminal forfeiture analysis. The implications of the Bajakajian decision for civil forfeiture will be discussed further below.

If "facilitate" means to make easier, as ordinary dictionary definitions indicate, it is a knotty question whether the term covers all situations in which the property makes the offending conduct possible. For example, all drug transactions must take place somewhere. Does the fact that a location is required to consummate a drug transaction mean that any place where a drug transaction occurs is forfeitable as "facilitating" the transaction? Lower courts have often avoided such an extreme interpretation of the law, finding ways of indicating that the connection to a location was just too fortuitous, or paradoxically, too fundamental to justify finding it to "facilitate" a crime. Thus, the fact that Parcel A, on which drugs were unloaded, could be reached only by crossing Parcel B did not mean that the second property "facilitated" the delivery, even though it certainly made it possible for Parcel A to be used; nor did the court accept that Parcel B made the unloading sufficiently less visible to passersby to say that it "facilitated" the action.⁽³²⁾ But another court found that where drugs were found in one of two adjoining condo units, a portion of the wall dividing which had been removed, the drug-free condo "facilitated" the drug crime because its walls prevented people from seeing directly into the condo where the drugs were located.⁽³³⁾

2. Case law and legislative history

Because "facilitation" is susceptible of a range of definitions, courts have rarely justified their interpretations by reference to the literal meaning of that term. Several circuits construe the statute to require the government to establish probable cause to believe that there is a "substantial connection" between the property and the prohibited activity.⁽³⁴⁾ Other courts have rejected the "substantial connection" test.⁽³⁵⁾ Some courts require only that there be more than an "incidental or fortuitous" connection between property and the prohibited activity.⁽³⁶⁾ However, the malleability of "substantial connection" itself may indicate that in many cases, the distinction between the standards is largely semantic.⁽³⁷⁾

The "substantial connection" formulation finds some support in the legislative history of § 881(a)(6), which added money or proceeds to the listed types of forfeitable property, already including conveyances.⁽³⁸⁾ In discussing the addition, the House report stated

Due to the penal nature of forfeiture statutes, it is the intent of these provisions that property would be forfeited only if there is a substantial connection between the property and the underlying criminal activity which the statute seeks to prevent. . . . [A]ny moneys, negotiable instruments, or securities that were used or intended to be used to facilitate any violation of the Controlled Substances Act would be forfeitable only if they had some substantial connection to, or were instrumental in, the commission of the underlying criminal activity which the statute seeks to prevent.⁽³⁹⁾

The extent of drug-related property subject to civil forfeiture under 21 U.S.C. 881 is also too limited in one respect. Under current law, if a person uses a boat or car to transport narcotics or uses equipment to manufacture dangerous drugs, his use of the property renders it subject to civil forfeiture. But if he uses a secluded barn to store tons of marihuana or uses his house as a manufacturing laboratory for amphetamines, there is no provision to subject his real property to civil forfeiture, even though its use was indispensable to the commission of a major drug offense and the prospect of the forfeiture of the property would have been a powerful deterrent.⁽⁴⁰⁾

Once again, Congress indicated that it envisioned the forfeiture of property directly employed in significant criminal activity (both for the existing conveyance forfeiture and the new real property section); and in fact spoke of property being "indispensable to the commission of a major drug offense," a statement of connection much stronger than merely making the illicit activity in any manner easier. In fact, in the section analysis of § 881(a)(7), the House did not even acknowledge the inclusion of "facilitating" property, stating that the "amendment would add to the list of property subject to civil forfeiture set out in section 881(a) real property which is used or intended to be used in a felony violation of the Drug Abuse Prevention and Control Act."⁽⁴¹⁾

This legislative history is a useful source for forfeiture opponents, but courts may be hesitant to resort to such history for interpretive guidance unless the statutory language appears ambiguous or constitutionally suspect. Here, the statutory language seems unambiguously broad; facilitate's already very broad sweep seems to be reinforced in subsections (a)(4) and (a)(7) by the delimiter "in any manner." As already indicated, even courts adopting the language of "substantial connection" stop far short of the strictest connection suggested by the legislative history. True, courts and juries do use these limitations to reject cases which violate their innate sense of fairness or otherwise shock the conscience. But the opportunity to appeal to conscience only exists if cases are judicially challenged. The guidelines for connections are not so clearly established as to deter the police from seizing in the first place, especially since they will often be able to forfeit seized property without having to explain their bases for doing so.

Relying on the innate sense of fairness of fact finders is a very inconsistent manner of limiting forfeiture. And a few extreme cases indicate the virtually limitless extent to which forfeiture may be taken under a liberal notion of "facilitation." Cases involving bank accounts, in which the government may only be able to establish probable cause to believe that a portion of funds are tainted as illegal proceeds, are one great temptation. In one Hawaiian case, the government sought forfeiture of the entirety of a bank account of which probable cause could be established as to roughly half to believe that it was drug proceeds. Operating under both the drug forfeiture statute and the forfeiture provisions of the money laundering statute, the government convinced the court that although it was undisputed that the claimant ran a legitimate money exchange business whose proceeds were also deposited in that account, all of the money should be forfeit because the presence of the "clean" funds in the account facilitated laundering of the drug proceeds by helping to make them appear to be from legitimate sources as well.⁽⁴²⁾

This decision was based in part on an earlier 11th Circuit determination upholding a jury verdict under the criminal drug forfeiture law that where a claimant ran a substantial drug operation "out of the back room" of his horse farm, the 27 horses raised there "facilitated" his crime by providing a legitimate business as cover for his illicit activities.⁽⁴³⁾ On its facts, the horse case may have been a legitimate example of facilitation; evidence indicated that the claimant used code words with his drug associates that appeared to refer to horse farming, such that a jury could conclude that the farm was in fact intentionally used as a cover for the illegal activity. Nonetheless, the abstract idea that the presence of legitimate activities helps to hide illegal ones could make a great deal of property and currency subject to forfeiture as "facilitating" illegal activity, even when it is not itself in any sense the product of or used for illegal acts.

3. Extrastatutory limitations

The possible sweep of forfeiture statutes has concerned courts.⁽⁴⁴⁾ But if the language of the statute is of limited assistance, and if lower courts appear unwilling to embrace genuinely the narrowing construction implied by the legislative history, are there any other limitations on the breadth of property that may be subject to civil forfeiture?

a. History

Justices Thomas and Scalia have both suggested that historical limitations may provide guidance in determining what property may be subject to forfeiture. Forfeiture historically was far more limited in the number of actions, the types of underlying conduct, and the forms of property it reached.⁽⁴⁵⁾ (However, the Supreme Court has been inconsistent as to whether the philosophical justification for modern forfeiture is the same as that of some historical antecedents, such as deodand.⁽⁴⁶⁾) Of course, whatever the historical pedigree of forfeiture, absent a constitutional backstop, history alone does not prevent Congress from authorizing by statute far broader exercises of forfeiture than were ever known. (The government is likely to argue that the use of terms like "facilitate in any manner" indicates that Congress unmistakably intended to break new ground.)

History may be useful in showing that current forfeiture law is so unlike its antecedents as to reopen constitutional considerations that the courts have previously considered to be settled. Justice Thomas suggested this when he stated

A strong argument can be made, however, that § 881(a)(7) is so broad that it differs not only in degree, but in kind, from its historical antecedents. Indeed, it is unclear whether the central theory behind in rem forfeiture, the fiction "that the thing is primarily considered the offender," can fully justify the immense scope of §881(a)(7).⁽⁴⁷⁾

b. Constitutional limitations

Unfortunately, the Supreme Court has been unreceptive (at least for the moment), to limits on what property may be subject to civil forfeiture based upon three provisions of the Constitution that make express reference to property rights, the Due Process Clauses of the Fifth and Fourteenth Amendments and the Just Compensation Clause (a.k.a., the Takings Clause) of the Fifth Amendment.⁽⁴⁹⁾ The rejection of substantive due process "innocent owner" defenses has already been discussed. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) and Bennis v. Michigan, 116 S.Ct. 994 (1996), both involving forfeitures under state laws, the Court concentrated on this due-process type analysis but also rejected Just Compensation claims. In Bennis,⁽⁵⁰⁾ after holding that due process did not provide an innocent owner defense to forfeiture, the Supreme Court perfunctorily rejected the petitioner's argument that the forfeiture of her interest in a car co-owned by her husband, who had engaged in conduct with a prostitute in the car without her knowledge, was an unconstitutional taking without just compensation, in violation of the Fifth Amendment.⁽⁵¹⁾ The Court reached this conclusion simply by stating

if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.⁽⁵²⁾

Although the present climate appears less than friendly to applying Just Compensation Clause jurisprudence to civil forfeiture cases, plaintiffs who wish to argue that the connection is too slim between the property sought by the government and the government's legitimate interest (rather than the connection between the property and the crime) will certainly find it instructive to examine two recent cases involving property rights, in which landowners protested the imposition of conditions on the grant of building permits, claiming that these restrictions effected uncompensated takings of property for public use.⁽⁵³⁾ In Dolan v. City of Tigard,⁽⁵⁴⁾ building on Nollan v. California Coastal Commission,⁽⁵⁵⁾ the Court developed the idea that to justify uncompensated land use restrictions, a nexus between land use restrictions imposed on an individual and legitimate state interests is essential. Although this was not a challenge to a law of general applicability,⁽⁵⁶⁾ as in some First Amendment and many Equal Protection "tailoring" cases, the inquiry was similar: Assuming both a valid state interest and a general constitutional right of the plaintiff, will the proposed restriction sufficiently advance the specific state interest to justify the impingement on the individual, or is the fit between the justification and actual effect so improper that the exercise of power appears to fulfill something other than the stated goal?⁽⁵⁷⁾ Without statutory language to guide or limit them, the Court in Dolan posed the nexus question, "[W]hat is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development?"⁽⁵⁸⁾ It answered that there need be first an "essential nexus" between the condition and the impact it is designed to avoid. Assuming this basic nexus to have been found, the Court went on to hold that the Fifth Amendment requires "rough proportionality," explaining that "no precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." ⁽⁵⁹⁾ Thus, it required something more than a generalized, rational relationship to justify the exercise of police power at the expense of private property rights.

This helpful notion depends of course on what state interest is put forth to justify the state's restriction of property rights. Unfortunately, it may be undercut in the civil forfeiture context by language in Bennis v. Michigan. There, the car was forfeit under a state nuisance statute, intended "to deter illegal activity that contributes to neighborhood deterioration and unsafe streets."⁽⁶⁰⁾ As the Court stated that Mrs. Bennis conceded that the automobile "facilitated" criminal activity,⁽⁶¹⁾ it did not require the state to show how forfeiting the automobile would promote the state's efforts to stop neighborhood deterioration and unsafe streets. Even if the state would have had difficulty in explaining how forfeiture of Mrs. Bennis' interest in the car advanced the state's purpose of "deter[ring] illegal activity that contributes to neighborhood deterioration and unsafe streets," point argued extensively by Justice Stevens in dissent,⁽⁶²⁾ the Court also offered more general justification for forfeitures. "Forfeiture of property prevents illegal uses 'both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.'"⁽⁶³⁾ Thus, the Court concentrated on the general deterrent value of forfeiture as its justification, even excusing the imprecision of law as "build[ing] a secondary defense against a forbidden use and preclud[ing] evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner."⁽⁶⁴⁾

If the government may justify forfeiture by its deterrent value (assessing a penalty both to make illegal behavior unprofitable and to encourage "innocent" property owners to more vigorously police uses of their own property), then not only would virtually any forfeiture further these goals, a pure monetary fine would as well, and thus it is not clear that any factual connection between the property and the activity sought to be discouraged is required. If a further justification for forfeiture is the subsidization or repayment of law enforcement,⁽⁶⁵⁾ again, nearly every forfeiture of saleable goods would further this goal. The passing linkage to prohibited activity may serve only to distinguish it from a tax. ⁽⁶⁶⁾

The Supreme Court has recognized one Constitutional limit on the extent of forfeiture, the Excessive Fines Clause of the Eighth Amendment. In a pair of cases in 1993, Austin v. United States, 509 U.S. 602 (1993) and Alexander v. United States, 509 U.S. 544 (1993), the Court held that the Eighth Amendment's Excessive Fines clause was applicable to civil and criminal forfeitures, so long as they were punitive at least in part. See Austin, 509 U.S. at 610 (civil forfeiture subject to excessive fines limitations if it is at least partially punitive, even if also serving remedial goals), Alexander, 509 U.S. at 558 (applying excessive fines clause to criminal forfeiture, citing Austin). The Court at that point expressly refrained from explaining how the excessiveness of a forfeiture should be analyzed in either the criminal or civil contexts, and lower courts developed a variety of tests in both civil and criminal cases, largely combining review of the role played by the property in the alleged crime with some form of proportionality review based on the value of the forfeiture.

This term, in United States v. Bajakajian, No. 96-1487 (June 22, 1998), the Court examined how the Excessive Fines Clause should apply to a criminal forfeiture. The Court held that it was irrelevant in an in personam forfeiture whether or not the property subject to forfeiture was an instrumentality of the crime, thereby rejecting the necessity of analyzing the connection between the property and the crime. Rather, it held that "the test for the excessiveness of a punitive forfeiture involves solely a proportionality determination," Slip op. at 11, and that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Slip op. at 12.

While certainly hopeful for forfeiture opponents, the Bajakajian case leaves many questions. First, as a practical matter, it remains to be seen how it will be applied in criminal forfeitures in which the property at issue is not cash, as in Bajakajian, but real estate or some other unitary property where the value of the forfeiture cannot be reduced (other than being entirely eliminated) without liquidating the property. In practice, this may often have the result of substituting cash fines for property forfeitures, using the value of eligible property as a baseline for the amount of the fine.

Second, there is a question of if and how the "grossly disproportional" test will be applied in civil forfeiture cases. The Bajakajian court did not say that a criminal or in personam forfeiture is excessive if grossly disproportional to the gravity of the defendant's offense; it said that a punitive forfeiture is grossly disproportional under those circumstances. Since the justification for applying the Excessive Fines clause to civil in rem forfeitures, specifically under 21 U.S.C. § 881, is that such forfeitures are (at least in part) punitive, this analysis should arguably apply to civil forfeitures as well. However, the Bajakajian test compares value of property to gravity of defendant's offense. This could produce several interpretations for application in civil forfeiture cases, where the defendant is nominally the property.

One interpretation would be to compare the value of the property to the alleged conduct of the property owner. Where the owner is the one alleged to have acted illegally, this would be very similar to Bajakajian. Where the owner is not accused of personal wrongdoing, however, (and might be claiming an innocent owner defense) it may be that the Court would compare the value of the property to the severity of the offender's conduct. Such an analysis would mean that forfeiture of, for example, a mothers' $50,000 house, might not be found to be excessive where it was compared to her son's sale of a kilo of cocaine from the house, even though the forfeiture did not punish him. If the value is compared to the mother's conduct, however, assuming for example that she was no more than negligent, then the fine would more likely be excessive. As a result, the Eighth Amendment Excessive Fines clause could create a sort of innocent owner defense in civil forfeitures, but one based on value. For example, the innocent mother whose son's actions caused forfeiture of her $500 car might still be out of luck, as its low value might not be found excessive in relation to her negligent conduct.

The fact that owners of low value property will likely get little relief under any application of the Bajakajian proportionality test demonstrates one reason why it is important to continue to argue for some substantial required connection between the property and the prohibited conduct. Otherwise, a poor claimant whose old jalopy was tangentially involved in a drug deal (for example, by transporting the owner's child to a location where he made a phone call arranging to sell a small quantity of marijuana) will not likely be protected, while the parent whose new Lexus was used in the identical fashion might be.

Bajakajian itself may show that the role of the property in the crime is still relevant to civil forfeitures. After all, the Court held only that instrumentality status was irrelevant to in personam forfeitures, while most civil forfeitures are in rem. And it indicated that one should look to the conduct of the defendant in evaluating a forfeiture. In an in rem forfeiture, the property is the defendant. In reality, of course, the inanimate property commits no "offense," but it does have a role in the offense. As discussed further below, in concurrence in Austin, Justice Scalia suggested that the Eighth Amendment's excessive fines clause applies in civil forfeitures in a way similar to that which the foregoing reading of Bajakajian may suggest. Although Justice Scalia would not apparently consider the value of the property at all in a civil forfeiture, his analysis would require the court to evaluate the closeness of the connection between the property and the crime, probably using historical standards as to what level of involvement made the property "guilty," something he appears to equate with being an instrumentality.

As a result of Bajakajian, then, one possible analysis to be applied in civil forfeitures is to look to the connection of the property to the crime, in the same way that a court might look to see whether a person was an instigator or merely a minor accomplice in giving criminal sentences. The more serious the crime and the more central the property's role in the crime, the greater the value of property that could be forfeit without violating the Excessive Fines clause.

Although the foregoing may be a possible interpretation of the application of the Excessive Fines Clause to civil forfeitures and could have some advantages for owners of low-value property, it is fundamentally at odds with the interpretations given previously which would look to the conduct of people involved. In the end, property owners, especially innocent owners, may have more to gain by arguing that their conduct should be the basis for comparison to the value of the property.

When thinking about Bajakajian, one should also be aware of an implication that the dissent sought to read into the majority opinion. As noted before, the majority held that whether property was an instrumentality was irrelevant for in personam forfeiture analysis, and reaffirmed that any forfeiture that is at least in part punitive, be it in rem or in personam, is subject to Excessive Fines limitations. The majority noted:

Although the term "instrumentality" is of recent vintage, it fairly characterizes property that historically was subject to forfeiture because it was the actual means by which an offense was committed. "Instrumentality" forfeitures have historically been limited to the property actually used to commit an offense and no more. A forfeiture that reaches beyond this strict historical limitation is ipso facto punitive and therefore subject to review under the Excessive Fines Clause. ⁽⁶⁷⁾

As attorneys consider the likely application of Bajakajian to civil forfeiture, as well as other possible avenues for arguing that the term "facilitate" in § 881 should be construed more narrowly, it is important to remember that civil forfeiture is an "in rem" proceeding based at least originally on a fiction that the thing is the defendant because of some taint or guilt acquired by misuse. Thus, attorneys should be on the look out for legal principles that dictate the degree and type of connection between the property and prohibited activity.

Prior to Bajakajian, three Justices expressed concern about the factual nexus required between prohibited activity and property in order to justify its civil forfeiture. The clearest constitutional limit was proposed by Justice Scalia, who suggested that the Eighth Amendment's excessive fines clause provides the means of policing the required connection between the property and the conduct giving rise to forfeiture.⁽⁶⁹⁾ In a concurrence in Austin, Justice Scalia opined that in determining excessiveness of an in rem forfeiture, the operative question is "what property has been 'tainted' by unlawful use," an inquiry to which the value of the property is irrelevant.⁽⁷⁰⁾ Justice Scalia went on to say

[A]n in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense--the building, for example, in which an isolated drug sale happens to occur. Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.⁽⁷¹⁾

The relevant inquiry for an excessive forfeiture under § 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, 'guilty' and hence forfeitable?⁽⁷²⁾

Justice Scalia thus believes, it seems, that for in rem forfeiture, the Eighth Amendment limits what property the Congress can declare to be "guilty." His analysis would not favor the direct transfer of Bajakajian's "gross disproportionality" test, but as explained above, would not be inconsistent with an interpretation of Bajakajian that in the civil context compared the value of the property to the severity of its offense (or in other words, the centrality of the property's role in the alleged illegal conduct.) In Justice Scalia's analysis, one would determine the boundaries of that definition of guilt is by determining what degree of involvement in prohibited activity would have been required to sustain a forfeiture at the time of the passage of the Eighth Amendment. Justice Scalia's rudimentary historical analysis suggests that only instrumentalities of a crime are forfeitable,⁽⁷³⁾ but since "instrumentality," like "facilitate," leaves room for broad interpretation by some courts, the real limiting power of this construction is unclear.

In both Bennis⁽⁷⁴⁾ and James Daniel Good Real Property,⁽⁷⁵⁾ Justice Thomas too expressed "distrust of the Government's aggressive use of broad civil forfeiture statutes."⁽⁷⁶⁾ Indicating a different sensibility about the meaning of "facilitate" than Justice Stevens did in Bennis, Justice Thomas there declared that he is "disturbed by the breadth of new civil forfeiture statutes such as § 881(a)(7), which subjects to forfeiture all real property that is used, or intended to be used, in the commission, or even the facilitation of a federal drug offense."⁽⁷⁷⁾ Justice Thomas stated that because of current practice, "it may be necessary -- in an appropriate case-- to reevaluate our generally deferential approach to legislative judgments in the area of civil forfeiture," and suggested, based on Justice Scalia's partial concurrence in Austin, that such a case might arise in the excessive fines context.⁽⁷⁸⁾ (Although such a civil case has yet to arise, as we have seen, Justice Thomas authored the recent Bajakajian opinion, invalidating a criminal forfeiture as excessive.) With regard to civil forfeiture, Justice Thomas has suggested that, at least where innocent owners are involved, forfeiture should be limited to the historical bounds of what are "instrumentalities" of the alleged crime,⁽⁷⁹⁾ but he unfortunately neither indicates why this should be legally mandated, nor defines "instrumentality" to demonstrate whether this would constitute a substantial limitation in practice. In Bennis, where the Court's discussion had concentrated on the due process implications of a forfeiture, Justice Thomas stated

forfeiture of property without proof of the owner's wrongdoing, merely because it was "used" in or was an "instrumentality" of crime has been permitted in England and this country, both before and after the adoption of the fifth and Fourteenth Amendments. . . .

. . . The limits on what property can be forfeited as a result of what wrongdoing-- for example, what it means to "use" property in crime for purposes of forfeiture law-- are not clear to me. Those limits, whatever they may be, become especially significant when they are the sole restrictions to the state's ability to take property from those it merely suspects, or does not even suspect, of colluding in crime. It thus seems appropriate, where a constitutional challenge by an innocent owner is concerned, to apply those limits rather strictly, adhering to historical standards for determining whether specific property is an "instrumentality" of crime.⁽⁸⁰⁾

Justice Stevens, also writing in Bennis, in a dissent joined by Justices Breyer and Souter,⁽⁸¹⁾ "comment[ed] on the tenuous connection between the property forfeited here and the illegal act that was intended to be punished, which differentiates this case from the precedent on which the Court relies."⁽⁸²⁾ In the first section of his opinion, as preface to his larger discussion that due process prohibits the forfeiture of the property of an innocent owner, he thus addressed the question of the nexus between the property sought to be forfeit and the crime.

Justice Stevens analyzed nexus or connection by extrapolating from prior cases three categories of property subject to seizure; "pure contraband; proceeds of criminal activity; and tools of the criminal's trade."⁽⁸³⁾ Justice Stevens noted that forfeiture for the third category of items has always been more problematic because of its potential broad sweep and because "the government's remedial interest in confiscation is less apparent."⁽⁸⁴⁾ Analyzing the historical admiralty cases on which the Court's forfeiture jurisprudence is based, he noted that in those cases, the primary or sole use of the ship was for an illicit activity. Thus, he stated that "the law may reasonably presume that the owner of valuable property is aware of the principal use being made of that property," but he would have held that an isolated misuse of the car could not justify its forfeiture as an instrumentality of the crime.⁽⁸⁵⁾ Relying on a misstatement of the majority opinion in Austin⁽⁸⁶⁾ as well as the comments of Justices Thomas and Scalia already discussed, he concluded that "[i]n recent years, a majority of the members of this Court has agreed that the concept of an instrumentality subject to forfeiture--also expressed as the idea of "tainted" items--must have an outer limit. . . . The car in this case . . . was used as little more than an enclosure for a one-time event . . . . By the rule laid down in our recent cases, that nexus is insufficient to support the forfeiture here."⁽⁸⁸⁾ Thus, although also not clearly articulated, Justice Stevens would apparently hold that due process requires that property other than contraband subject to forfeiture be shown to be an instrumentality of crime.

4. Evaluation

The range of property that is possibly subject to forfeiture under § 881 and other modern forfeiture statutes is disturbingly vast, and has garnered discomfort among judges, includes some Justices. Although the Bajakajian opinion may indicate some willingness to distinguish the hoary history of civil forfeiture jurisprudence, it seems unlikely that the courts will at present be receptive to new (substantive) due process or Just Compensation clause challenges to forfeiture. Rather, the Eighth Amendment offers the most promising constitutional ground for challenge. In light of the breadth of the statutory language of "facilitating" property, it is likely that litigants will have to call upon some constitutional limitation to create a backstop to prosecutors' often voracious appetite for assets that can be converted into funds for their own operations. Litigants should not forget, however, that the legislative history, as well as the statutory-interpretation case law, inconsistent though it may be, does offer some limiting construction of the statute's reach on a nonconstitutional basis.

V. Conclusion

The foregoing memorandum covers a wide variety of possible issues regarding the current civil forfeiture regime under 21 U.S.C. § 881, the drug forfeiture law. Although many of these arguments are specific to the provisions of that law, they have broader implications for other forfeiture regimes.

______________________________________

FOOTNOTES

1. 116 S.Ct. 994 (1996).

2. 416 U.S. 663 (1974).

3. 416 U.S., at 689-90 (citations omitted).

Justice Kennedy, concurring in part and concurring in judgment in Austin, 509 U.S. 602, 629 (1993), also expressed concern with an innocent owner's rights, stating "[a]t some point, we may have to confront the constitutional question whether forfeiture is permitted when the owner has committed no wrong of any sort, intentional or negligent. That for me would raise a serious question." Justice Kennedy later dissented in Bennis. See 116 S.Ct. 994, 1010 (1996).

4. Bennis, 116 S.Ct., at 997-98. The Bennis court did not discuss in any detail the argument that the owner of property subject to forfeiture should also qualify as an innocent owner if he "had done all that reasonably could be expected to prevent the proscribed use of his property." Calero-Toledo, 416 U.S. at 689, quoted in Bennis, 116 S.Ct., at 999. When petitioner Bennis attempted to rely on this language from Calero-Toledo, the court dismissed the reliance, stating that she had conceded the language to be obiter dictum, and further stating that in any event, Mrs. Bennis had done no more than to show that she was not personally involved in the criminal enterprise and had no knowledge of the involvement of her property, 116 S.Ct. at 999, implying that she had failed to present evidence that she had done all that reasonably could be expected to prevent the proscribed use of her property.

In her briefs, Mrs. Bennis primarily advocated the adoption of a "negligent entrustment" standard in place of the "all reasonable steps" standard, but she also argued that she should prevail under the "reasonableness" standard. Specifically, Mrs. Bennis argued that where an individual has no actual knowledge of the proscribed use of her property, as was established here, and no reason to suspect such a use (i.e., no constructive knowledge) because the perpetrator of the conduct is a person in a position of trust to her--her husband-- whose very proscribed action--soliciting a prostitute--violates the marital trust as well as the law, it was reasonable for her to take no particular actions to prevent the use of the car in this way. This point was picked up by Justice Stevens in dissent, who recapped the uncontradicted evidence that Mrs. Bennis had no knowledge of her husband's conduct, concluding, "[w]ithout knowledge that he would commit such an act in the family car, or that he had ever done so previously, surely petitioner cannot be accused of failing to take 'reasonable steps' to prevent the illicit behavior." Id. at 1008. Justice Stevens further pointed out that because the car was jointly owned, it was not in Mrs. Bennis' legal power to prevent her husband from using the car. Id. at 1009. He concluded then that "[t]here is no reason to think that the threat of forfeiture will deter an individual from buying a car with her husband--or from marrying him in the first place--if she neither knows nor has reason to know that he plans to use it wrongfully."Id.

The Court's rejection of Mrs. Bennis' attempted reliance on the "reasonableness" language of Calero-Toledo may indicate that the Court sees no inherent irrationality in the construction given the statutory language of § 881(a) by some courts that a claimant without knowledge must nonetheless demonstrate affirmative preventative efforts.

5. See, e.g., United States v. $4,255,000, 762 F.2d 895, 906 (11th Cir. 1985) ("the application of the statutory 'innocent owner' defense turns on the claimant's actual knowledge, not constructive knowledge"); United States v. $10,694, 828 F.2d 233, 235 (4th Cir. 1987) (innocent owner defense under 881(a)(6) available if claimant lacked actual knowledge of illegal activity).

6. United States v. 755 Forest Road, 985 F.2d 70, 72 (2d Cir. 1993) (considering innocent owner defense under § 881(a)(7), court implicitly adopted constructive knowledge standard, stating that if a claimant is willfully blind, his ignorance of illicit activity will not entitle him to avoid forfeiture, despite fact that § 881(a)(7) does not contain "willful blindness" provision); see also United States v. Millbrand, 58 F.3d 841 (2d Cir. 1995)(same). But seeUnited States v. 3 Parcels in La Plata County, Colorado, 919 F. Supp 1449 (D. Nev. 1995) (claimants to real property need not show that they did not exhibit willful blindness to fact that property was either used to facilitate carrying out of illegal activities or that it was purchased with profits from such activities).

7. See, e.g., United States v. One 1989 Jeep Wagoneer, 976 F.2d 1172, 1175 (8th Cir. 1992).

8. S. Rep. 98-225, at 215, 1984 U.S.C.C.A.N. 3182, 3398.

9. In general, the legislative history surrounding the innocent owner provisions of the law is sparse and not very helpful. As originally enacted in 1970, § 881 did not permit the forfeiture of money and proceeds or of real property at all, and its provision permitting forfeiture of conveyances used to transport or conceal drugs contained only the exceptions for common carriers and stolen vehicles, currently found at § 881(a)(4)(A) & (B). In 1978, dramatically broadening the scope of property subject to forfeiture, the Congress enacted § 881(a)(6), permitting the forfeiture of money and things of value intended to be exchanged for drugs or traceable as proceeds of drug transactions, and of money used or intended for use to facilitate a controlled substance law violation. The section also included the innocent owner provision found in § 881(a)(6) today. As the legislative history makes clear, this innocent owner provision was part of a Congressional attempt to exercise some rein over the vast new power it had created. The relevant history unfortunately sheds little insight on either the question of whether the claimant's knowledge of the wrongdoing is an absolute bar to recovery, or on the meaning of consent:

no property would be forfeited under the Senate amendment to the extent of the interest of any innocent owner of such property. The term "owner" should be broadly interpreted to include any person with a recognizable legal or equitable interest in the property seized. Specifically the property would not be subject to forfeiture unless the owner of such property knew or consented to the fact that:

(1) the property was furnished or intended to be furnished in exchange for a controlled substance in violation of law,
(2) the property was proceeds traceable to such an illegal exchange, or
(3) the property was used or intended to be used to facilitate any violation of the Federal illicit drug laws.

10. One 1989 Jeep Wagoneer, 976 F.2d, at 1175.

11. Id.

12. United States v. One 1973 Rolls Royce, 43 F.3d 794 (3d Cir. 1994).

13. Webster's Third International Dictionary 481 (1986 ed.)

14. See, e.g., United States v. 121 Allen Place, 75 F.3d 118, 121 (2d Cir. 1996) (sustaining jury verdict in favor of innocent owner and stating that if owner has knowledge, consent will be inferred unless "claimant can prove he took all reasonable measures to rid property of illegal conduct"); United States v. 418 57th St, 922 F.2d 129 (2d Cir. 1990) ( under innocent owner defense, unless owner with knowledge can prove every action reasonable under the circumstances was taken to curtail drug-related activity, consent is inferred and property is subject to forfeiture);

15. See, e.g. United States v. One Parcel of Real Estate, 963 F.2d 1496, 1503 (11th Cir. 1992) ("consent" under §§ 881(a)(6) &(a)(7) has the same meaning as under due process, as indicated in Calero-Toledo, and thus requires that claimant have taken all reasonable steps to prevent illegal activity of which he was aware); United States v. Route 2, Box 61-C, Crosset, Ark., 727 F. Supp. 1295, 1299 (W.D. Ark. 1990) (to prevail as innocent owner, claimant must show that he "has done all that reasonably could be expected to prevent the proscribed use of the property"; "all reasonable efforts" standard derived from Calero-Toledo).

16. 121 Allen Place, 75 F.3d, at 121 (inferring consent unless "claimant can prove he took all reasonable measures to rid property of illegal conduct"); One Parcel of Real Estate, 963 F.2d, at 1503 (proving lack of consent requires that claimant have taken all reasonable steps to prevent illegal activity of which he was aware); United States v. 1813 15th St., NW, 956 F. Supp. 1029 (D.D.C. 1997) (where disabled owner lived in first floor of rowhouse and knew some tenants were involved with drugs, but left responsibility for controlling problem to daughter, and daughter locked doors but did not attempt to evict tenants, court granted summary judgment for government, denying innocent owner defense and finding that owner did not as a matter of law, take all reasonable steps; fact that drug problem diminished as result of actions taken after government instituted forfeiture action demonstrates that more was possible); See also United States v. 710 Main Street, 753 F. Supp. 121, 125 (S.D.N.Y. 1990) (Property owner need not take all possible steps to prevent illicit use as long as he takes all reasonable steps; no "heroic or vigilante" efforts are required, as to do so "would result in the dangerous precedent of making property owners in drug-infested neighborhoods into substitute police forces.")

17. 121 Allen Place, 75 F.3d, at 121 (determination of what is reasonable is subjective one judged by the jury); United States v. 3855 South April St., 797 F. Supp. 933 (M.D. Ala. 1992) (69-year-old grandmother with 6th grade education took all reasonable steps to prevent use of property to conduct narcotics sales and was entitled to innocent owner defense under § 881(a)(7) although she did not at all times keep doors bolted to prevent drug dealers from fleeing into her house when police arrived, and although she refused to swear out trespass complaints against dealers, some of whom were blood relations. Claimant repeatedly called police to complain about narcotics activity, posted "no trespassing" sign, and evicted from home those children who were involved with drugs, and thus took all steps reasonable in light of her individual circumstances and personal limitations).

18. Thus, for example, parents may be required to turn their own children in to the police, or they may not. CompareUnited States v. One Parcel of Real Property, 821 F. Supp. 666 (S.D. Fla. 1993) (despite elderly mother's knowledge that son had drug problem, failure to evict him did not subject her property to forfeiture by defeating innocent owner defense; it was not reasonable for elderly woman to evict son and son's entire family, especially in light of her apparent dedication to maintaining and preserving family), with United States v. One Parcel of Property, 801 F. Supp. 737, 740, 742-43(S.D. Ga. 1992) (bench trial) ( mother's house forfeit despite evidence that she had "fussed" at her adult daughters and told them that she did not want drugs in her home, and despite the court's apparent acceptance that "she did not throw her daughters out of the house because she was concerned about providing shelter for their young children"; court concluded that her efforts were not reasonable, stating, "Despite her belief that her pleas would be sufficient, she should have called the police department or the Drug Enforcement Agency for help with her children.")

19. See, e.g., One Parcel of Real Estate, 963 F.2d, at 1503 (claimant can avoid forfeiture as innocent owner by proving either ignorance of the illegal activity or that the activity occurred without consent); United States v. 141st St. Corp. by Hersh, 911 F.2d 870, 878 (2d Cir. 1990) ("a claimant may avoid forfeiture by establishing either that he had no knowledge of the narcotics activity or, if he had knowledge, that he did not consent to it."); U.S. v. 890 Noyac Rd., 945 F.2d 1252 (2d Cir. 1991) (same); United States v. 6109 Grubb Rd., 886 F.2d 618, 626 (3d Cir. 1989) (if claimant has knowledge of illegal activity, he may still claim innocent owner defense if he proves that he did not consent to that illicit activity).

20. 141st St. Corp. by Hersh, 911 F.2d at 878.

21. See, e.g., United States v. Lot III-B, 902 F.2d 1443, 1443 (9th Cir. 1990)(per curiam) (in dicta, stated that innocent owner defense is unavailable if the owner "either knew or consented to the illegal activities"); Route 2, Box 61-C, Crosset, Ark., 727 F. Supp, at 1299 (construing § 881(a)(7), court held that to prevail on innocent owner defense, claimant must show that he had no knowledge of the illegal activity and that he "has done all that reasonably could be expected to prevent the proscribed use of the property"); United States v. 2901 S.W. 118th Court, 683 F. Supp. 783 (S.D. Fla 1988) (applying §§ 881(a)(6)&(7), court stated that to prevail on innocent owner defense, claimant must demonstrate both a lack of knowledge and that he did everything reasonably possible to prevent illegal use); United States v. One Brown 1987 Mercedes Benz, 657 F. Supp. 316 (E.D. Mo. 1987) (construing § 881(a)(4), held that to prevail on innocent owner defense, claimant must demonstrate lack of knowledge of illegal activity and all reasonable efforts to prevent use).

22. See United States v. Property Titled in the Names of Ponce, 751 F. Supp. 1436, 1441 (D. Hawaii 1990) (Under § 881(a)(7), knowledge of illegal activity alone will result in forfeiture unless claimant shows that she did all that could reasonably be expected to prevent illegal activity; explicit consent to illegal activity is not required. Furthermore, if claimant lacked knowledge of illegal activity, must still demonstrate that she exercised due care with regard to preventing illicit use of property.)

23. See, e.g., United States v. 710 Main Street, 753 F. Supp. 121, 125 (S.D.N.Y. 1990) (Property owner need not take all possible steps to prevent illicit use as long as he takes all reasonable steps; no "heroic or vigilante" efforts are required, as to do so "would result in the dangerous precedent of making property owners in drug-infested neighborhoods into substitute police forces."). See also One Parcel of Real Estate, 963 F.2d, at 1506 ( "Although we do not require claimants to work alongside [law enforcement] agents in their effort to combat drug dealers, we insist that claimant under no immediate threat of reprisal either communicate their knowledge to police, or attempt to remove themselves form the scene of illegal activity.") (citations omitted; emphasis added).

24. The provision regarding forfeiture of firearms, 21 U.S.C. § 881(a)(11), similarly provides that firearms may be forfeit if "used or intended to be used to facilitate the transportation, sale, receipt, possession, or concealment" of illegal drugs, the materials or equipment used in their manufacture, and any proceeds of the drugs, materials, or equipment. As the value of firearms is generally small, I confine my discussion to provisions regarding vehicle , real estate, money and other valuables, where the temptation for overreaching may be more prevalent.

25. 21 U.S.C. § 881(a)(4) (emphasis added).

26. 21 U.S.C. § 881(a)(7)(emphasis added).

27. 21 U.S.C. § 881(a)(6)(emphasis added). Other parts of subsection (a)(6) require a more exacting connection, permitting forfeiture of "moneys, negotiable instruments, securities and other things of value" only if they are "furnished or intended to be furnished" in exchange for drugs, and allowing forfeiture of proceeds only if they are traceable to a drug transaction. The similarity between the items subject to forfeiture because they are a medium of exchange and those forfeitable if used to facilitate an violation of the subchapter may indicate that "facilitate" must be given a narrow construction; otherwise, the broader "facilitation" section would appear to swallow all transaction cases except those involving barter for drugs.

28. See, e.g., United States v. 1964 Beechcraft Baron Aircraft, 691 F.2d 725 (5th Cir. 1982) (holding forfeiture proper if vehicle is used "in any manner" to facilitate the sale or transportation of a controlled substance or raw material for the manufacture thereof and rejecting stricter "substantial connection" test applicable to forfeitures under § 881(a)(6) against money or other things of value negotiated in exchange for drugs because of difference in language between two sections).

29. See, e.g., United States v. 3639 Second St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989).

30. Justice Stevens apparently did not consider the automobile in Bennis to have facilitated the prohibited conduct at all, distinguishing the case from those in which "the vehicles or the property actually facilitated the offenses themselves." 116 S.Ct., at 1006. He explained,

Our leading decisions on forfeited conveyances, for example, involved offenses of which transportation was an element. . . . here, on the other hand, the forfeited property bore no necessary connection to the offense committed by the petitioner's husband. It is true that the act occurred in the car, but it might just as well have occurred in a multitude of other locations. The mobile character of the car played a part only in the negotiation, but not in the consummation of the offense.

31. No. 96-1487 (June 22, 1998).

32. U.S. v. Two Tracts of Real Property with Bldgs., Appurtenances and improvements Thereto, Located in Carteret Cty, N.C., 998 F.2d 204 (4th Cir. 1993).

33. United States v. 9844 Titan Court, 75 F.3d 1470 (10th Cir. 1995).

34. See, e.g., U.S. v. Two Tracts of Real Property with Bldgs., Appurtenances and improvements Thereto, Located in Carteret Cty, N.C., 998 F.2d 204 (4th Cir. 1993); Nnadi v. Richter, 976 F.2d 682 (11th Cir. 1992); United States v. One Parcel of Real Property, 900 F.2d 470 (1st Cir. 1990); U.S. v. One 1984 Cadillac, 888 F. 2d 1133 (6th Cir. 1989); United States v. One Parcel of Real Estate, 852 F. Supp. 1013 (S.D. Fla. 1994); U.S. v. One Parcel of Land, 814 F. Supp. 531 (S.D. Miss), aff'd. 33 F.3d 11 (11th Cir. 1993). See also United States v. 3639 Second St., NE, 869 F.2d 1093, 1096 (8th Cir. 1989)(statute required more than an incidental or fortuitous contact between the property and the illegal activity, but property need not be "indispensable to the commission of a major drug offense"), 3639 Second St., N.E., 869 F.2d, at 1098 (Arnold, J., concurring) (stating that court is not departing from insistence on "substantial connection" set forth in prior cases); United States v. One 1976 Ford F-150 Pick-up, 769 F.2d 525, 527 (8th Cir. 1985) (per curiam) (court rejected forfeiture of truck observed in single use to transport person to field were marijuana was grown, stating "we do not believe that the forfeiture statute was meant to support divestiture of private property based on an insubstantial connection between the vehicle and the illegal activity such as that which has been presented here.").

35. See, e.g., United States v. 9844 Titan Court, 75 F.3d 1470 (10th Cir. 1995) ("sufficient independent nexus" for forfeiture of industrial condominium unit where contraband found only in neighboring unit but wall between units had been removed, and thus any contraband in neighboring unit depended for its continuing concealment at least in part on walls of neighboring unit; court does not try to define required nexus more specifically); United States v. 785 St. Nicholas Ave., 983 F.2d 396, 403 (2d Cir. 1993) (expressly rejecting "substantial connection" as requirement of statute; only "nexus" must be shown); U.S. v. 38 Whalers Cove Dr., 954 F.2d 29 (2d Cir. 1992) (rejecting "substantial connection" test); United States v. 916 Douglas Ave., 903 F.2d 490, 493-94 (7th Cir. 1990) ("substantial connection" not required between defendant's property and drug-related offense for forfeiture of property' government must demonstrate only that nexus is more than incidental or fortuitous);U.S. v. 3120 Banneker Dr., N.E., 691 F. Supp. 497, 500-01 (D.D.C. 1988) (holding that government need not show "substantial connection"; property is subject to civil forfeiture if it is used, even tangentially, in connection with drug transaction).

36. See United States v. 916 Douglas Ave., 903 F.2d 490, 493-94 (7th Cir. 1990); United States v. 3639 Second St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989).

37. Compare United States v. One 1976 Ford F-150 Pick-up, 769 F.2d 525, 527 (8th Cir. 1985) (per curiam) (court rejected forfeiture of truck observed in single use to transport person to field were marijuana was grown as an "insubstantial connection") and U.S. v. 1990 Toyota 4Runner, 798 F. Supp. 497 (N.D. Ill.), reversed 9 F.3d 651 (7th Cir. 1990) (connection between automobile and drug transaction was too attenuated to support determination that car "facilitated" transaction, so as to render it forfeitable, where only allegation was that defendant used car to take him to and from meeting at which planned future drug transaction was discussed; use of car had nothing to do with transaction itself or even with making meeting easier to carry out) withU.S. v. One 1984 Cadillac, 888 F. 2d 1133 (6th Cir. 1989) (Even under "substantial connection" test, car used to transport owner to site of illegal narcotics transaction was forfeitable as it facilitated transaction by permitting owner to consummate transaction arranged by telephone.) and U.S. v. One 1987 Ford F-350 4 x 4 Pickup, 739 F. Supp. 554 (D. Kan. 1990) (fact that a truck was used to travel to motel where owner could inspect, smoke, and negotiate the purchase of marijuana was sufficient to establish that the truck "in some manner" facilitated or was intended to facilitate the sale or possession of a controlled substance and was substantially connected to such activity; therefore truck was subject to forfeiture, notwithstanding fact that no controlled substance or money for or from the purchase or sale of controlled substances was carried in the vehicle). See also United States v. 3097 S.W. 111th Ave., 699 F. Supp. 287 (S.D. Fla.), aff'd 921 F. 2d 1551 (11th Cir. 1988) (single illegal drug transaction taking place in driveway on property is sufficient to show substantial connection between the property and drug activity to permit forfeiture of property and house thereon); But seeU.S. v. Two Tracts of Real Property in Carteret Cty, N.C., 998 F.2d 204 (4th Cir. 1993) (statute did not allow government to arrest real property whose only connection with crime consisted of furnishing quasi-easement over which drug smugglers hauled contraband; culpable person had no interest in property and mere fact that land provided "means of access" by which contraband reached public highway did not establish "substantial connection")

38. Interestingly, however, none of the cases cited above as using the "substantial connection" test was brought as a case of facilitation under § 881(a)(6).

39. H.R. 95-1193, 1978 U.S.C.C.A.N. 9496, 9522-23 (emphases added).

40. H.R. 98-1030, at 195, 1984 U.S.C.C.A.N. 3182, 3378 (emphasis added).

41. H.R. 98-1030, at 215, 1984 U.S.C.C.A.N. 3182, 3398 (emphasis added).

42. U.S. v. All Monies in Acct. No. 90-3617-3, 754 F. Supp. 1467 (D. Haw. 1991); see also United States v. Tencer, 107 F.3d 1120, 134-1135 (5th Cir. 1997) (although mere commingling of tainted and untainted funds in bank account does not render account subject to forfeiture, forfeiture is proper under money laundering statute upon proof that the funds were pooled to disguise the nature and source of the illegal proceeds).

The All Monies court explained the forfeitability of property under a facilitation theory generally as follows:

Facilitating property is forfeitable if it makes the underlying criminal activity less difficult or 'more or less free from obstruction or hindrance.' Unites States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990). To be forfeitable, there must be a substantial connection between the property and the illegal activity. Id. at 989-90. There must be more than an incidental or fortuitous connection between the property and the illegal activity, but the property need not be indispensable to the commission of the offense. United States v. 3639 2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989). Nor does the property need to be used exclusively for illegal activity. Schifferli, 895 F.2d at 991. If a portion of the property is used to facilitate the offense, then all of the property is forfeitable. United States v. Santoro, 866 F.2d 1538, 1542 (4th Cir. 1989).

This transposition of principles developed in cases involving real property to cases involving fungible cash is not explained or even acknowledged by the All Monies court, but there is no doubt that the transfer of language from cases involving real property to other contexts is a questionable and potentially dangerous precedent. Another case indicates the potential. In United States v. One Single Family Residence, 933 F.2d 976 (11th Cir. 1991), two brothers jointly invested in the construction of a home as an investment. One brother's money came from legitimate sources; the other's were proceeds of drug dealing. When the government sought forfeiture of the house as proceeds of drug transactions, the first brother sought to assert an innocent owner defense with regard to his share of the value of the house because his investment was not traceable to drug dealing, although he was aware that his brother's investment was financed by drugs. In rejecting the innocent owner defense (which will be discussed in the next section), the court did not confine itself to the facts of the case, in which the property at issue was unitary real estate co-owned by two separate investors, but concluded that "under section 881(a)(6), legitimate funds are forfeitable when knowingly commingled with forfeitable funds." Id. at 982. It is easy to see how this statement could be extended in other cases in entirely different contexts to justify the forfeiture of the entirety of easily divisible bank accounts, held by a single person, on the grounds that combining ill-gotten and legitimate money in a single account renders the legitimate funds forfeitable. This would largely eviscerate the limits set forth by other parts of subsection (a)(6), which commands that proceeds be traceable to drug exchanges to be forfeitable.

43. United States v. Rivera, 884 F.2d 544 (11th Cir. 1989). Interestingly, the jury found that the horses facilitated the drug crime, but did not find that the real property of the ranch itself was forfeitable, apparently finding that it did not facilitate the crime.

44. See, e.g., United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d Cir. 1992) ("We continue to be enormously troubled by the government's increasing and virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in those statutes."); United States v. One Parcel of Property, 964 F.2d 814, 818 (8th Cir. 1992) ("[W]e are troubled by the government's view that any property, whether it be a hobo's hovel or the Empire State Building, can be seized by the government because the owner, regardless of his or her past criminal record, engages in a single drug transaction."), rev'd sub nom Austin v. United States, 509 U.S. 602 (1993).

45. For example, historically some forfeiture law was far more particular about identifying the specific property subject to forfeiture. See, e.g., Austin v. United States, 509 U.S. 602, 628 (1993)(Scalia, J., concurring) ("if a man was killed by a moving cart, the cart and its horses were deodands, but if the man died when he fell from a wheel of an immobile cart, only the wheel was treated as a deodand, since only the wheel could be regarded as the cause of death.")

46. Compare Austin, 509 U.S. at 611-614 (modern American forfeiture statutes trace to English customs statutes and not to deodand); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-83 (1974)(same); with Bajakajian, No. 96-1487, (Maj. opinion at n.5) (stating that "the 'guilty property' theory behind in rem forfeiture can be traced to the Bible" and evolved into the theory of deodand in medieval Europe).

47. James Daniel Good Real Property, 114 S.Ct. 492, 515 (1993) (Thomas, J., concurring and dissenting in parts).

48. See Bajakajian, n.6. There, the Court reaffirmed its 1993 decision in Austin v. United States, in which it held that the excessive fines clause of the Eighth Amendment applied to 21 U.S.C. § 881. Justice Thomas, here writing for the majority, stated:

It does not follow, of course, that all modern civil in rem forfeitures are nonpunitive and thus beyond the coverage of the Excessive Fines Clause. Because some recent federal forfeiture laws have blurred the traditional distinction between civil in rem and criminal in personam forfeiture, we have held that a modern statutory forfeiture is a "fine" for Eight Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam. See Austin v. United States, at 621-22 (although labeled in rem, civil forfeiture of real property used "to facilitate" the commission of drug crimes was punitive in part and thus subject to review under the Excessive Fines Clause).

49. As was discussed earlier in this memorandum, basic procedural due process rights, such as notice and a hearing, have been preserved, particularly for real property, although the process afforded may still be open to challenge.

50. Bennis v. Michigan, 116 S.Ct. 1560 (1996).

51. It had likewise rejected a taking argument in Calero-Toledo, albeit on due process-like grounds.

52. Id. at 1001 (citations omitted).

53. It must be noted that the Court expressly rejected the idea that the analysis it applied under the Taking Clause was essentially the same as the scrutiny applied under the Equal Protection clause of the Fourteenth Amendment, and took great pains to distinguish its terminology, so as to show that it required a more exacting fit between the restriction and state interest. See Dolan v. City of Tigard, 114 S.Ct. 2309, 2319-20 (1994); Nollan, 483 U.S. 825, 834 n.3 (1987) (rejecting implication of Justice Brennan's dissent that the standards in Taking cases are "the same as those applied to due process or equal protection claims. To the contrary, our verbal formulations in the takings field have generally been quite different. We have required that the regulation 'substantially advance' the 'legitimate state interest' sought to be achieved, not that 'the State "could rationally have decided" that the measure adopted might achieve the State's objective.'")

54. 114 S.Ct. 2309 (1994).

55. 483 U.S. 825 (1987).

56. The court explicitly noted that the cases before it were more like individual adjudications than an analysis of a law of general applicability Dolan, 114 S.Ct., at 2316, , and seemed to believe that a closer fit between the condition and interest was therefore justified, in part to guard against the possibility that an individual would be forced to bear a collective cost unfairly. See id. at 2317 (citing Nollan, 483 U.S., at 837).

57. The Court has been particularly concerned by conditions so far removed from the harm to be prevented that they appear pretextual, as indicated in the following passage:

The evident constitutional propriety disappears . . . if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. . . . [T]he lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation.

58. 114 S.Ct., at 2312.

59. 114 S.Ct., at 2319-2320.

60. Bennis, 116 S.Ct., at 1001.

61. Id. In describing her "concession" the Court used but did not define the term "facilitate," which in any case did not appear in the state statute at issue.

62. See Bennis, 116 S.Ct. 994, 1004-1007 (Stevens, J., dissenting.)

63. Id. at 1000.

64. Bennis, 116 S.Ct., at 1000-01.

65. At least one court has held that it is an explicit purpose of § 881(a) to subsidize law enforcement. See United States v. Route 2, Box 61-C, Crosset, Ark., 727 F. Supp 1295, 1297 (W.D. Ark. 1990)("Section 881(a)(7) is designed to strip the drug trade of the instrumentalities of crime, including real estate used to facilitate drug transactions, and to finance government programs designed to eliminate drug trafficking.")

66. Whether the absence of a substantial link to wrongdoing might cause forfeiture, if justified as a revenue measure, to run afoul of the Just Compensation Clause, was a question touched upon in the Bennis briefs but not answered by the Court. Such an argument could be based upon the principle that the Just Compensation clause of the Fifth Amendment is designed "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960).

67. No. 96-1487, Slip op. at 10, n.8. (citations omitted).

68. See 96-1487, Kennedy, J., dissenting, Slip Op. at 4 ("The majority suggests in rem forfeitures of the instrumentalities of crimes are not fines at all.")

69. See Austin v. United States, 509 U.S. 602, 627-28 (1993) (Scalia, J., concurring in part).

70. Austin, 509 U.S. 602, 627. By contrast, because in the case of a criminal in personam forfeiture, the justification for the forfeiture is based upon the culpability of the owner, in those cases, Justice Scalia would treat the forfeiture like any criminal fine, basing excessiveness on the proportionality between the value of the property seized and the severity of the crime. Id.

71. Id. at 627-628.

72. Id. at 628.

73. Id. at 628.

74. 116 S.Ct. 994 (1996).

75. 114 S.Ct. 492 (1993).

76. Good, 114 S.Ct., at 515.

77. Id. at 515 (emphasis in original).

78. Id. at 515 & n.2.

79. See, e.g., Bennis, 116 S.Ct., at 1002.

80. Bennis, 116 S.Ct., at 1002 (Thomas, J., concurring).

81. Justices Stevens, Souter and Breyer, along with Justice Ginsberg, joined Justice Thomas in the Bajakajian majority.

82. Bennis, 116 S.Ct. 994, 1004 (1996) (Stevens, J., dissenting).

83. Id. at 1004 (Stevens, J., dissenting).

84. Id. at 1004.

85. Id. at 1005.

86. Justice Stevens wrote that "In Austin, the Court rejected the argument that a mobile home and auto body shop where an illegal drug transaction occurred were forfeitable as "instruments" of the drug trade.⁽⁸⁷⁾

87. " '

88. 116 S.Ct., at 1006 (internal citations omitted).