Forfeiture Defined and Explained

A forfeiture is to be divested or deprived of the ownership of something as a penalty for the commission of a crime. 10 min read



  1. To be divested or deprived of the ownership of something as a penalty for the commission of a crime.
  2. To give up or surrender property (usually).
  3. Obs. A vassal surrendering his land, or other property, to his lord, after conviction in the lord's court.

In Case Law

In the Supreme Court's decision in U.S. v. James Daniel Good Real Property, 114 S.Ct. 492 ('93), the Court held that the seizure of real property for forfeiture under 21 U.S.C. S 881(a)(7) without prior notice and a hearing violates the owner's due process rights under the Fifth Amendment. The Court reasoned that the immobility of real property ordinarily removes any resort to exigent circumstances to justify dispensing with the proper preseizure notice and hearing. Id. at 503. Other courts have held that Good applies retroactively. See, e.g., U.S. v. Real Property Located at 20832..., 51 F.3d 1402, 1405 (9th Cir.'95).

Austin v. U.S., 113 S.Ct. 2801 ('93) held that civil forfeitures under 21 U.S.C. S 881(a)(7) serve in part as punishment and are therefore subject to the Eighth Amendment's prohibition on excessive fines. The Court, however, declined to enumerate the factors to be considered in determining whether a forfeiture is excessive, leaving the issue to be decided by the lower federal courts. Id. at 2812.

Instrumentality and Proportionality

However, generally some form of the two-pronged approach set out above has been followed. First, under the 'instrumentality' (or 'nexus') test, the forfeited property must have a sufficiently close relationship to the illegal activity. Second, under the 'proportionality' test, forfeiture of the property must not impose upon the owner a penalty grossly disproportionate to his offense.

The instrumentality or nexus test derives from Justice Scalia's concurring opinion in Austin. In rem forfeiture, he points out, has traditionally been based on the theory that the property is guilty of an offense, that is, it has been tainted by its unlawful use. 113 S.Ct. at 2813 (Scalia, concur). Therefore, for purposes of determining whether a civil forfeiture is an excessive fine, the initial inquiry is whether the property (or the assets for which it has been exchanged in whole or in part) has a close enough relationship to the offense to permit its confiscation to any extent.