By Stephen Mihm
One of the central criticisms of Attorney General Jeff Sessions’s effort to roll back Obama-era restrictions on civil forfeiture is that it would reassert powers best left in the 1980s, when the War on Drugs raged. But the roots of the controversial practice is far older, and stranger, than that.
Unlike criminal forfeiture, when the state seizes the property of someone found guilty of a crime, civil forfeiture rests on a curious legal fiction: that the property seized is “guilty” of a crime and can therefore be confiscated by the state’s law enforcement officers independent of a criminal proceeding. For example, police officers can seize a car they believe was used to deliver drugs — even if the owner of the car wasn’t suspected, much less convicted, of a crime.
Most legal scholars who attempt to trace the genealogy of civil forfeiture necessarily begin with a medieval legal concept known as a deodand, from the Latin deo dandum, “that which must be given to God.”
The deodand was a form of forfeiture. Unlike forfeitures attendant to a murder conviction, where the Crown confiscated the guilty person’s assets as punishment, a deodand was the confiscation of the instrument that caused the death on the grounds that the object was itself guilty. This might be a tree, a horse-drawn cart, or a sword or ax.
As the jurist Oliver Wendell Holmes Jr. observed in a study of this practice, “it did not matter that the forfeited instrument belonged to an innocent person.” For example, if a friend borrowed your sword and killed someone else with it, the Crown would confiscate your sword or demand that you forfeit its value in cash.
This idea — what one legal scholar has described as “the deodand’s curious logic of morally culpable objects” — was originally designed to defray the expenses of the deceased’s funeral. It quickly became another revenue stream for the Crown.
The idea that inanimate objects could be found guilty independent of a criminal prosecution found new life in an outpouring of statutory law known as the Navigation Acts passed in the 17th century. Though born of a different era and built on different principles, these laws echoed the peculiar logic of the deodand, even if they emerged independently.
The Navigation Acts required merchants to ship most commodities in boats built, owned and manned by British interests. Violation of the acts could result in the forfeiture of a ship or the goods it carried. Courts interpreted these statutes as permitting the Crown to seize property independent of a criminal prosecution.
For example, if the Crown discovered a vessel carrying smuggled contraband, it could seize the ship, even if the owner was innocent or fled prosecution. As with the idea of a deodand, the forfeiture action rested on the quaint fiction that the ship or the contraband was guilty of a crime; the state need not name a human accomplice to proceed with its seizure.
That was Great Britain. In the early 19th century, the U.S. Congress adopted these “in rem” (literally, “in property”) proceedings to help prosecute smugglers evading customs duties. While some judges expressed unease with the idea, the courts eventually embraced British precedent.
In a key case decided before the Supreme Court in 1827, Justice Joseph Story argued “no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.” After all, he observed, “the thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing.”
But Story and his peers on the bench believed that civil forfeiture was a remedy the government could apply only in admiralty cases involving ships. How, then, did it become entangled in all manner of law enforcement operations? The answer lies with the Civil War. During that conflict, Congress weaponized civil forfeiture proceedings in order to punish secessionists. It’s a history that Jefferson Beauregard Sessions III, whose name honors the president of the Confederacy and one of its more colorful generals, might wish to contemplate.
After the outbreak of the war, many Southerners left behind assets in the North. Unionists sought to confiscate this property as punishment for treason, but this was impossible: The Confederates had to be tried and found guilty in a court of law in order for the state to exercise this power. But the property owners had fled behind Confederate lines.
Frustrated, Congress got creative, and took the idea of “in rem forfeitures” and applied it to the absentee property owners. The resulting piece of legislation, known as the Confiscation Act, permitted the federal government to dispossess Confederates of their property without a conviction of treason.
The Confiscation Act was immensely controversial among Northern legislators, many of whom objected to the idea of taking an oddball legal fiction drawn from admiralty law and opening the doors to its widespread, indiscriminate application.
Sen. Orville Browning of Illinois, an ally of Lincoln, described the bill as resting on “hocus pocus,” and presciently warned that the Confiscation Act would unleash a “revolution … in our criminal jurisprudence … [despite] all the safeguards of the Constitution, proceedings in personam for the punishment of crime may be totally ignored, and punishment inflicted against the property alone.”
As is often the case in wartime, the demands to do something about the crisis at hand overwhelmed enough legislators’ reservations. Nonetheless, challenges to the legislation piled up in court, and three of these cases reached the Supreme Court in 1870; the following year, the Court upheld all the forfeitures, enshrining the practice in law.
Over the remainder of the 19th and early 20th century, writes legal scholar James Maxeiner, the courts began weaving together an intellectual case for civil forfeiture on a grand scale. In a series of cases, the federal government revived and reinvigorated the notion that civil forfeiture was aimed at guilty objects, not guilty people.
In J. W. Goldsmith, Jr.-Grant Co. v. United States (1921) the Supreme Court endorsed the legal fictions surrounding civil forfeiture, and upheld the seizure of a “guilty car” used to transport liquor banned during Prohibition, likening the forfeitures to “the law of deodand” — a nod to medieval precedent that was largely irrelevant, but helped forge an intellectual pedigree for a still controversial idea.
Thanks to this case, civil forfeiture became lodged in American jurisprudence. It remained there until the 1970s, when laws passed in the so-called “War on Drugs” reinvigorated civil forfeiture, laying the foundation for the abuses that are commonplace today.
Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to Bloomberg View. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.