Due Process Implications of Shifting the Burden of Proof in Forfeiture Proceedings Arising out of Illegal Drug Transactions

Abstract

In an in rem forfeiture, t the government seeks in a civil action to obtain title to property used in the commission of a crime. 2 In 1978, Congress amended the Comprehensive Drug Abuse Prevention and Control Act 3 (Drug Control Act) to provide for the in rem forfeiture of proceeds furnished in exchange for illegal drugs. 4 Typically, when the government sues to impose a civil penalty it must demonstrate liability by a preponderance of the evidence. 5 In an action to forfeit illegal drug proceeds, however, the burden of proof falls on the defending party, who must demonstrate by a preponderance of the evidence that he was not aware that the proceeds had been used in a drug transaction. 6 This allocation of the burden of proof increases the risk of an erroneous taking of property in violation of the due process clause. 7 The practice of shifting the burden of proof in forfeiture proceedings onto the party opposing the forfeiture is an old one, but the Supreme Court has never ruled on its constitutionality. 8 The Court does not permit shifting the burden of proof onto the defendant in a criminal action for elements that are part of the government's prima 1. Forfeitures can be classified according to several criteria.First, they can be classified according to the degree of criminal involvement of the owner or some other specified person.In an in personam forfeiture, the deciding factor is whether the specified person committed the prohibited act.See United States v. Grundy, 7 U.S. (3 Cranch) 337, 355 (1806).An in rem forfeiture, however, requires only a link between the property and the criminal violation.The Palmyra, 25 U.S. (12 Wheat.) 1, 14 (1827).Forfeitures can also be characterized as civil or criminal.A criminal forfeiture requires proof in a criminal proceeding of the owner's guilt; civil forfeitures, on the other hand, are imposed through a civil suit.See generally Helvering v.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 8 citations exist upstream.