In Print: Volume 88: Number 5
Executive Weapons to Combat Infection of the Art Market
By Jennifer Anglim Kreder
88 Wash. U. L. Rev. 1353 (2011)
We all know that criminal proceedings implicate heightened constitutional protections in comparison to civil proceedings. Many of us also have at least heard of civil forfeiture, somewhat of a hybrid of criminal and civil process that has its roots in this country in the first session of Congress. A civil forfeiture proceeding is filed directly against a piece of real or personal property on the premise that its association with criminal activity has tainted it such that it is subject to forfeiture. In the 1990s, the government’s use of civil forfeiture to seize assets in its War on Drugs was widely criticized, and the Supreme Court determined that certain constitutional protections applied in particular circumstances. But in 1996, in Bennis v. Michigan, the Supreme Court ruled that the seizure of property, even one‘s residence, when the property owner “had no knowledge of, and did not consent to, the illegal use of the property,” was not prohibited by the Due Process or Takings Clauses, which drew widespread criticism from legal academia. Congress responded to Bennis by enacting the Civil Asset Forfeiture Recovery Act of 2000 (CAFRA), which raised the government‘s burden of proof in many civil forfeiture actions filed after 2000 from “probable cause” to “preponderance of the evidence” and codified a widely, but not universally, applicable “innocent owner defense.”
