Civil Forfeiture
Forfeiture is the taking by the government of property that is illegally acquired or used, without compensation to the owner. Civil forfeiture statutes are in rem. In an in rem forfeiture, it is the “property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient.” Various Items of Personal Property vs. United States, 282 U.S. 577, 581 (1931). Since the property itself is the defendant, the guilt or innocence of the property owner is not relevant. “It is the illegal use that is the material consideration, it is that which works the forfeiture, the guilt of innocence of its owner being accidental.” J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 513 (1921).
Criminal forfeitures are in personam. They are part of a criminal proceeding against a defendant. A forfeiture verdict is rendered by a jury only after a guilty verdict on the predicate charge. Put another way, while civil in rem proceedings determine the government’s title to the property against the whole world, criminal in personam proceedings determine the government’s right to the property only against the criminal defendant.
Administrative Forfeiture
A subcategory of civil forfeitures are administrative forfeitures. Federal civil forfeiture statutes allow that certain categories of property can be forfeited without the filing of a civil forfeiture action in federal district court. In the absence of a timely claim to the seizing agency, the agency declares the property forfeited without the involvement of a prosecutor or court. Federal administrative forfeiture is available for property valued up to $500,000, except for real property which is never subject to administrative forfeiture.