Forfeiting Due Process: How Adjudicative Reform Fails Property Owners

Administrative defaults in civil asset forfeiture matters result in the taking of private property presumptively related to criminal activity without an adjudication of the owners’ guilt or innocence. State efforts aimed at reform have focused on changing evidentiary standards or linking the forfeiture process to the outcome of criminal charges, but too often the procedural burden remains on a property owner to initiate a case in court challenging seizure. Reforms sited in the adjudicative process fail to recognize that even heightened notice requirements rarely result in the filing of a timely claim opposing forfeiture. This Article examines whether notice of the right to initiate a court proceeding in civil asset forfeiture cases is sufficient to protect the constitutional due process rights of property owners. In 2016, California passed a law intended protect property owners from unjust forfeitures, but because the impetus still lies on property owners to file the right paperwork to oppose the forfeiture, the impact of this law has been minimal and most civil asset seizures still proceed to forfeiture by default. This Article engages in an evaluation of the efficacy of this law through an empirical analysis of public record data from California alongside civil court data for cases adjudicated in the court system over seven years. Findings inform an evaluation of procedural and substantive due process rights in civil asset forfeiture cases, leading to a recommendation that the administrative burden of initiating a civil forfeiture case must be shifted from the claimant to the state, and that the Eighth Amendment doctrine of proportionality requires consideration of ability to pay.