Next term, the Supreme Court will hear Culley v. Attorney General of Alabama to examine whether Americans have the right to a prompt hearing when the government seizes their property through civil forfeiture — a practice that allows law enforcement to seize private property on the mere suspicion that it was involved in criminal activity.
As the court increasingly relies on history and tradition to guide its jurisprudence, civil forfeiture at the founding will take center stage in its analysis. Some have appealed to court precedent to dismiss the call for court hearings on the issue, but the Remission Act of 1790 reveals that the Founders went to great lengths to ensure procedural fairness and justice were not sacrificed for profit under early civil forfeiture.
The plaintiffs in Culley are two innocent parties, deprived of their vehicles for more than a year while awaiting an opportunity to prove their innocence and reclaim their property. The issue before the court is whether innocent property owners are entitled to a prompt hearing to recover their forfeited property and what test should be applied to determine whether this procedural delay amounts to a due process violation.
In opposition to the cert petition, the document that asks the justices to review the case, Alabama Attorney General Steven Marshall argued the court should not hear the case on the grounds that the Constitution treats property owners the same under civil forfeiture whether they are guilty or innocent, rendering the question inconsequential.
That is, civil forfeiture has traditionally been directed at the illicit use of the property itself, making the guilt or innocence of the property owner irrelevant to the legitimacy of the seizure. He wrote, “For centuries, this court has confirmed that ‘in rem’ civil forfeitures need not inquire into the guilt or innocence of the property’s owner.”
Use of Civil Forfeiture in the Founding Period
While this may be true of the court’s precedent, history suggests the Founders paid closer attention to the role of guilt in civil forfeiture proceedings. In the early days of the republic, the executive branch wielded broad power over a lenient property remission system under the Remission Act of 1790, protecting innocent property owners and lessening the blow of the unjust practice that is civil asset forfeiture.
Civil forfeiture began as a tool for the English crown to combat piracy, seize property from its colonial subjects, and enforce the Navigation Acts during the colonial period. Although the Navigation Acts helped to spur the American Revolution, the Founders adopted civil forfeiture in order to collect customs duties — a vital source of revenue for the fledgling country.
Importantly, they co-opted civil forfeiture from the British against the backdrop of the Navigation Acts, knowing that it was ripe for abuse. Alexander Hamilton, worried that innocent parties and those ignorant of the law would be swept up in a “ruinous” forfeiture regime, urged Congress to adopt the Remission Act of 1790. The act, which gave the secretary of the Treasury broad discretion to return forfeiture property to owners, established the first administrative avenue for forfeiture recovery.
Secretaries took full advantage of this power: Research analyzing more than 500 cases from 1789 to 1807 reveals that secretaries returned property to owners in 91 percent of petitions. Today, however, the U.S. Department of Justice returns just 3 percent of seized assets back to owners.
It was important to the early government that property owners be heard. Property would not be forfeited from those who simply lacked the resources or knowledge to properly defend themselves. Secretaries often engaged in personal case investigation, and Hamilton vehemently refused to “precipitate a forfeiture as long as there is a chance of new light to evince innocence.”
Notably, secretaries even accepted less than rigorous explanations for owners who did break the law — granting remission due to difficulty complying with customs laws and accepting unverifiable excuses such as a ship captain’s rush to get to port. For those who claimed to be ignorant of the law, secretaries were even more forgiving. Research shows that within the studied sample of petitions, secretaries never denied recovery due to an insufficient defense that the property owner misunderstood the law — whether that be due to misinformation, time spent out of the country, or the owner was simply “poor and ignorant.”
These remission practices reflect a deliberate choice by officials during the early years of the United States to enforce the penalties of civil forfeiture only upon individuals who were intentionally committing crimes. This is a far cry from the present assertion that guilt or innocence has borne no historical importance in civil forfeiture.
Remission Act’s Expanded Use
The Remission Act still exists today in a vestigial form. While it historically was and still is confined to the customs context, the practice it aimed to ameliorate no longer is.
The War on Drugs expanded civil forfeiture far beyond disputes along the borders and high seas to a law enforcement tool utilized in every city and state. It has expanded so much that the Remission Act is effectively obsolete in helping Americans reclaim forfeited property.
In the last 20 years, the federal government has seized $68.8 billion under 377 different federal statutes authorizing forfeiture. For everyday Americans whose cars, cash, watches, and homes are seized, remission is seldom granted. Between 1997 and 2015, only 2 percent of administrative proceedings over cash forfeitures resulted in remission to the owner.
And while the Civil Asset Forfeiture Reform Act (CAFRA) theoretically provides an innocent owner defense, procedural difficulties make it practically impossible to assert this defense in court. Furthermore, CAFRA does not apply to either state forfeiture or many types of federal forfeiture, and while ignorance of the law was considered grounds for remission in the 1790s, it certainly is not today.
The court has viewed the Remission Act as instructive in the customs context exclusively, and in doing so, misses a vital case study on both the legislative intent and original public meaning behind civil forfeiture.
Hamilton and the early American government went to great lengths to ensure that liberty and property rights of innocent owners were not traded for expanding government coffers, so much so that they allowed unintentional violators to reclaim forfeiture property under the 1790 Remission Act. The court in Culley will hopefully recognize that this is no longer the Founder’s forfeiture.