Civil forfeiture is a major issue that's recently gotten into the news, notably due to Attorney General Eric Holder's change to the controversial police action of seizing people's property. Unfortunately, Holder’s actions, while laudable, won't stop the massive damage that has already been done – and may very well continue the problem. Because although the media has finally begun to talk about the issue, we still haven’t been presented with a full scope of civil forfeiture: what it is and what it means.
To understand forfeiture, one must go back to colonial America. The idea of civil forfeiture comes directly from the British; early forfeiture law “refers to the power of a court over an item of real or personal property.” This could include land, in which the court would decide who owned a piece of land, or marriage, where the courts would have the authority to terminate a marriage.
Originally, in rem jurisdiction was “incorporated into American customs and admiralty laws governing the seizure of ships for crimes of piracy, treason and smuggling in the early days of the Republic, and during the American Civil War." It was later formalized in 1966 “in the Supplemental Rules for Certain Admiralty and Maritime Claims which apply to our civil forfeiture cases.” So the United States has always had some type of civil forfeiture law.
The situation changed, however, when President Nixon announced the War on Drugs and began to use civil forfeiture as an instrument of law enforcement. Author Montgomery Sibley notes that, as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Congress strengthened civil forfeiture as a means of confiscating illegal substances and the means by which they are manufactured and distributed. In 1978, Congress amended the law to authorize the seizure and forfeiture of the proceeds of illegal drug transactions as well.