Forfeiture of Property

Fundamentals of Procedural Law by Adam J. McKee

Forfeiture of property in criminal law is a compelling and significant instrument. It is a legal process where individuals lose their ownership rights to property linked to criminal activities upon conviction. In this chapter, we’ll dive into the complexities of property forfeiture, discussing its objectives, methods, and associated issues. We’ll also explore the crucial Supreme Court decisions that have shaped property forfeiture in America.

Understanding Property Forfeiture

When we talk about property forfeiture, we mean a legal process that allows the federal government or state to take away people’s ownership rights over assets. The term “assets” here refers to anything of value—money, cars, houses, and so forth. The reason for this action is that these assets are believed to be connected to criminal activities, either because they came from these activities (like money from selling illegal drugs) or because they were used in the commission of these crimes (like a car used for smuggling drugs).

This concept of property forfeiture is divided into two types: criminal forfeiture and civil forfeiture.

Criminal Forfeiture

Criminal forfeiture is linked to a person’s conviction in a criminal case. In other words, if a court finds someone guilty of a crime, that person may have to give up any property connected to the crime as part of their punishment. For example, if a person is convicted of illegal drug sales, the money they made from selling those drugs could be seized by the state. The target in criminal forfeiture is the offender’s property.

Civil Forfeiture

Civil forfeiture is somewhat different. Here, the target is the property itself, and this action can take place whether or not the owner of the property has been convicted of a crime. The government only needs to show that the property is linked to criminal conduct. For example, if a house was used to store stolen goods, the state might seize the house through civil forfeiture, even if the owner of the house was never found guilty of theft. This type of forfeiture is more about disrupting criminal activity and less about punishing the individual owner.

So, in summary, property forfeiture allows the state to seize assets tied to criminal activities. The two types, criminal and civil forfeiture, differ in that one is tied to a person’s criminal conviction and the other targets the property involved in a crime, regardless of a person’s criminal conviction.

Impactful Supreme Court Cases

Calero-Toledo v. Pearson Yacht Leasing Co. (1974)

In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), a yacht was seized after it was rented and used to transport marijuana. The owner of the yacht wasn’t aware of the illegal activity. The constitutional question here was whether forfeiture of property can occur without the owner’s knowledge of wrongdoing, a concern tied to the Due Process Clause. The Supreme Court held that the owner’s innocence does not prevent the government from confiscating property used in a crime.

United States v. $405,089.23 U.S. Currency (1996)

United States v. $405,089.23 U.S. Currency (1996) was a prominent case involving drug money. After two individuals were arrested for drug trafficking, the government sought forfeiture of their cash and assets. The Supreme Court addressed the issue of whether the forfeiture violated the Excessive Fines Clause of the Eighth Amendment, ruling that the forfeiture was constitutional as it was not grossly disproportional to the gravity of the offense.

United States v. Parcel of Land (1993)

United States v. Parcel of Land (1993), also known as the “Mansion in the Hamptons” case, involved the seizure of a luxury property related to a drug trafficking operation. The Supreme Court ruled that forfeiture of property could proceed, even if the owner was acquitted of criminal charges in a separate criminal trial, further cementing the practice of civil forfeiture.


Property forfeiture, a crucial aspect of criminal law, involves the state confiscating assets linked to criminal activities. There are two types of forfeiture: criminal and civil. Criminal forfeiture connects to a person’s conviction, requiring them to relinquish property related to the crime. For instance, money made from illegal drug sales could be seized upon conviction.

In contrast, civil forfeiture targets the property itself, even without a criminal conviction, as long as it’s linked to criminal conduct. An example would be a house used to store stolen goods, which can be seized regardless of the owner’s conviction status.

Three landmark Supreme Court cases have shaped American forfeiture laws. In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), the court ruled that property used in crime can be seized even if the owner was unaware of the wrongdoing. United States v. $405,089.23 U.S. Currency (1996) affirmed that forfeiture didn’t violate the Excessive Fines Clause if it wasn’t grossly disproportional to the offense’s gravity. Finally, United States v. Parcel of Land (1993) confirmed that property related to criminal conduct can be seized, even if the owner is acquitted in a separate trial.


Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).

United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), amended, 56 F.3d 41 (9th Cir. 1995).

United States v. Parcel of Land, 507 U.S. 111 (1993).


Modification History

File Created:  08/08/2018

Last Modified:  07/27/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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