When the federal government seizes cars, boats, money, real estate and other personal property, proceedings are set into motion based on laws that originated with medieval superstition.
English common law of the Middle Ages provided for forfeiture of any object causing a man’s death. Known as a “deodand,” the object, such as a weapon or run-away ox cart, was personified and declared tainted or evil, and forfeited to the king.
Today’s in rem (against things rather than against persons) forfeiture proceedings are civil suits against the property itself. Relying on analogy to the deodand, a legal “personification fiction,” declares the property to be the defendant. It is held guilty and condemned, as though it were a personality – and the guilt or innocence of the owner is irrelevant.
By applying this civil label to forfeiture proceedings, the government sidesteps almost all the protections offered by the Constitution to individuals. There is no Sixth Amendment guarantee of right to counsel. Innocent until proven guilty is reversed. Each violation of a constitutional right is then used as the basis for the destruction of another.
The violation of the Fifth Amendment’s “innocent until proven guilty” due process standard is used to destroy the prohibition of double jeopardy. Even acquittal of the criminal charges the forfeiture is based upon does not prevent re-trying the same facts, because, even though the government couldn’t prove a crime was committed, at the second trial the defendant must provide proof of innocence.
The Supreme Court holds that it is constitutional to forfeit property in rem from a person who is completely innocent and non-negligent in his use of the property. Lower courts accept prosecutors’ arguments that if it is permissible to confiscate property from completely innocent people, then constitutional protections could not possibly apply to anyone who is guilty of even a minor drug offense.
Unlike civil suits between individuals, the government is immune to counter-suit. The government can use its unlimited resources to repeatedly press a suit in the mere hope of convincing one juror the defendant did not provide a preponderance of evidence.
Forfeitures imposed by the English Crown led our nation’s founders to prohibit bills of attainder (forfeiture consequent to conviction) in the first article of the American Constitution. The main body of the Constitution also forbids forfeiture of estate for treason. The first Congress passed the statute, still law today, stating that “No conviction or judgment shall work corruption of blood or any forfeiture of estate.” However, early Americans did incorporate in rem (proceeding against a thing) procedures under Admiralty and Maritime law, to seize enemy ships at sea and to enforce payment of customs duties.
It was not until the outbreak of the Civil War that these Customs procedures were radically changed. The Confiscation Act of July 17, 1862, declared all property belonging to Confederate officers or those who aided the rebels to be forfeitable in rem. The U.S. Supreme Court held that if the act was an exercise of the war powers of government and was applied only to enemies, then it was constitutionally allowable in order to ensure a speedy termination of the war.
Today, the passions of the “War on Drugs” have caused Congress to once again use in rem proceedings to inflict punishment without the nuisance of the protections provided by the Constitution and Bill of Rights. “We have to save our Constitution,” says Vickie Linker, whose husband served two years in prison for a cannabis offense. “We have the truth.”