Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments. The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens—many are whom are innocent of any wrongdoing—and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property. This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the harm (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture to the property owner