Document Type

Article

Publication Date

2014

Abstract

United States civil forfeiture laws are rooted in admiralty in rem forfeiture proceedings that go back to mid-1700s English customs law, and a statute called the Act of Frauds. The procedure was born of the necessity of international marine trade. Similarly, when it came to using in rem seizure to enforce the customs laws, the Crown used a burden shifting presumption that was also born of necessity. Vessel owners were required to come forward and exculpate their vessel once the Crown showed probable cause of a violation. In Locke v. United States, Justice Marshall upheld that burden shifting presumption and the definition of probable cause in the admiralty in rem seizure context as a showing of reasonable suspicion, something less than a prima facie case. Sixty years later, however, the United States courts would begin to uphold uses of in rem forfeiture outside of the context of customs law, and today, statutory forfeiture provisions are constitutional scholars question whether or not civil forfeiture proceedings, having entered the law in the narrow context of admiralty in rem forfeiture proceedings, do an end run around the Fourth Amendment and Due Process. The Locke Court never heard or considered any constitutional argument.

Disciplines

Admiralty | Law | Legal

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