Asset Forfeiture & Instrumentalities: The Constitutional Outer Limits
Asset forfeiture is a large, increasingly bright star in the constellation of law-enforcement tools. State and federal law enforcement annually seizes billions of dollars in crime-tainted assets through administrative, civil, and criminal proceedings, typically facing relatively relaxed legal standards that can make asset forfeiture much more straightforward than criminal prosecution. These assets are deposited differently in different jurisdictions, but typically large portions are directed back to law enforcement agencies’ budgets. The perverse incentives this feedback loop arguably creates have recently sparked substantial controversies. These controversies are particularly acute when it comes to the forfeiture of “instrumentalities”: property that has some connection to illegal activity but possession of which is, on its own, legal. in certain circumstances, state and federal governments can lawfully seize real property, motor vehicles, currency, and a variety of other property after proving that it has been used to facilitate crime.
