by R Tamara de Silva
January 26, 2017
Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
`No, no!’ said the Queen. `Sentence first–verdict afterwards.’
`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’
`Hold your tongue!’ said the Queen, turning purple.
`I won’t!’ said Alice.
`Off with her head!’ the Queen shouted at the top of her voice.
Alice’s Adventures in Wonderland by Lewis Carroll
Few things in the practice of law have struck me as more similar in practice to the Queen’s declaration in Alice in Wonderland than the often seemingly surreal practice of civil forfeiture. Not only when in instances that it goes awry but just even as a theory as it sits written into federal and state statutes -resting on the books yet so very much at odds even in written theory with the scant enumerated rights and protections that are our constitutional safeguards against tyranny. It was anticipated by some that the recent confirmation hearings of the new United States Attorney General would draw attention to the practice of civil forfeiture. Mr. Sessions had previously defended the practice of civil forfeiture as it was used in Alabama in his tenure as a prosecutor there.
The practice of civil forfeiture provides that federal and state statutes allow the government to seize private property when that property is used in prohibited ways. Like so much in the law, the room for disaster lies in the application of what is subject to interpretation and by whom it is that is doing the interpreting.
Civil forfeiture originated in the laws of admiralty when ships carrying contraband were subject to seizure. The cargo carried would be seized whether on port or on the high seas often of necessity outside of the presence of the ship’s owners who may have been in distant countries. Forfeiture was later used in the area of border crossing during customs examinations starting in England in the 1700s and through the Act of Frauds.