St. Mary's Law Journal


This Comment discusses the history and development of forfeiture law—emphasizing the misnomer of “guilty property”—and addresses the lack of constitutional safeguards in the civil forfeiture statutes. It outlines prospective constitutional defenses announced by the United States Supreme Court, emphasizing the Fifth Amendment guarantee of due process, the Eighth Amendment’s Excessive Fines Clause, and the “innocent owner” defense. The federal statute authorizing civil forfeiture, 21 U.S.C. § 881 (Forfeiture Statute), was initially enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Comprehensive Forfeiture Act of 1984 amended the statute to impose forfeiture on real property purchased, used, or intended to be used to facilitate narcotics trafficking. Civil drug forfeiture is an important weapon in the war on drugs. The broad language of the Forfeiture Statute coupled with the zealousness of the drug war erodes important constitutional guarantees. This Comment asserts additional defenses are necessary to ensure the statute complies with the Constitution. Thus, courts should adhere to the congressional intent of the Forfeiture Statute—which is not to punish all drug users—but to cripple the economic bases of drug traffickers. Accordingly, the Court recently announced important new defenses to civil drug forfeiture in United States v. 92 Buena Vista Avenue, Austin v. United States, and United States v. James Daniel Good Real Property. The recognition of these additional defenses is necessary to ensure innocent property owners are not deprived of their property rights. Although the war on drugs involves important national interests and should be fought with unbridled determination, courts should recognize the protection of innocent persons from arbitrary governmental encroachment constitutes a hallmark of American jurisprudence. In conclusion, the war on drugs must be fought with care to ensure constitutional rights are not violated.


St. Mary's University School of Law