Civil Forfeiture and Due Process
Our civil forfeiture law grades describe the later stages of the forfeiture process: the legal burdens of proof borne by the government or property owners when—and if—a forfeiture case comes before a judge, as well as who benefits from the proceeds after a forfeiture concludes. New in this edition, we document the civil forfeiture procedures leading up to a hearing.
These procedures have profound implications for due process and property rights guaranteed by the Constitution. In his Culley concurrence joined by Justice Thomas, Justice Gorsuch observed:
As originally understood, this promise [of the Fifth and Fourteenth Amendment due process clauses] usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof. So how is it that, in civil forfeiture, the government may confiscate property first and provide process later? 1
Our analysis of civil forfeiture procedures defined by statute, along with available data, suggests the justices have it partially correct. The government may “provide process later” in some cases, but for many if not most property owners caught up in civil forfeiture, process—in the form of a hearing before a neutral adjudicator—is not provided at all.
As this section describes, most civil forfeiture laws make the right to a judicial hearing contingent upon an owner first running a procedural gauntlet, during which they will face both legal and practical obstacles. As a result, relatively few forfeitures will, in fact, be contested before a judge: just 4% in Indiana, according to a 2025 Institute for Justice study that examined a randomly drawn sample of 415 state forfeiture cases over five years. Among sampled cases resulting in forfeiture of at least some property, three out of four were decided by default. 2 Put simply, most property seized is likely to be forfeited—and much of it without any meaningful judicial review.
For those who do make it through the gauntlet, process often comes not just “later” but much later. Legal deadlines prescribed by statute add up to months or years—when they are prescribed at all—before a hearing or trial may happen. Data describing the length of forfeiture cases tell a similar story. During this time, the government usually has possession of the property, potentially creating significant hardship for those deprived of needed cash or cars and putting enormous pressure on them to settle, regardless of their guilt or innocence.