Nelson on Civil Forfeiture and the Constitution

Caleb Nelson, University of Virginia School of Law, has posted Civil Forfeiture and the Constitution, which is forthcoming in the Yale Law Journal:    

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property instantly passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government’s assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this paper cautions originalists not to assume that they are unconstitutional. The paper concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here—the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.