Civil Asset Forfeiture
Civil asset forfeiture allows the federal government to seize and keep property — cash, vehicles, real estate, bank accounts — that it alleges is connected to criminal activity, even if the property owner is never charged with a crime. Unlike criminal forfeiture (which requires a conviction), civil forfeiture is an action against the property itself, not the person. The government files a case with names like United States v. $35,000 in U.S. Currency, and the burden falls on the property owner to prove the property is "innocent." This power is one of the most controversial tools in federal law enforcement, generating billions in seized assets and persistent constitutional concerns about due process and property rights.
Current Law (2026)
| Parameter | Value |
|---|---|
| Civil forfeiture statute | 18 U.S.C. § 981 (and specific forfeiture provisions in drug, money laundering, and other statutes) |
| Criminal forfeiture | 18 U.S.C. § 982 (requires conviction) |
| General civil forfeiture rules | 18 U.S.C. § 983 (Civil Asset Forfeiture Reform Act of 2000) |
| Government's burden | Preponderance of the evidence (more likely than not) |
| Innocent owner defense | Owner must prove they did not know of or consent to the criminal conduct |
| Notice requirement | Written notice as soon as practicable, no more than 60 days after seizure |
| Right to counsel | No guaranteed right to appointed counsel in civil forfeiture |
| Real property protection | No seizure before court order; owner may remain in possession during proceedings |
| Hardship release | Available if seizure causes substantial hardship |
| Equitable sharing | Federal program sharing forfeiture proceeds with state/local agencies |
Legal Authority
- 18 U.S.C. § 981 — Civil forfeiture (property involved in money laundering, bank fraud, healthcare fraud, terrorism financing, and other specified offenses is subject to forfeiture to the United States)
- 18 U.S.C. § 982 — Criminal forfeiture (upon conviction for money laundering and other offenses, the court shall order forfeiture of involved property)
- 18 U.S.C. § 983 — General rules for civil forfeiture (establishes procedures including notice requirements, burden of proof, innocent owner defense, hardship provisions, and right to jury trial — enacted as the Civil Asset Forfeiture Reform Act of 2000)
- 18 U.S.C. § 984 — Fungible property (in forfeiture of cash and financial instruments, the government need not trace the specific property to the specific offense)
- 18 U.S.C. § 985 — Real property (civil forfeiture of real property must proceed judicially; no seizure before court order; owner may remain in possession pending proceedings)
How It Works
Civil forfeiture works as an action against the property — an "in rem" proceeding. The government alleges that the property is connected to criminal activity (proceeds of a crime, used to facilitate a crime, or purchased with criminal proceeds). The property itself is the defendant. The government must prove the connection by a preponderance of the evidence — a lower standard than the "beyond a reasonable doubt" required for criminal conviction.
The Civil Asset Forfeiture Reform Act of 2000 (CAFRA, codified primarily at § 983) improved due process protections after decades of criticism. Key reforms include: the government must send written notice within 60 days of seizure; the property owner can request a judicial hearing; the government bears the burden of proof (previously, some forfeiture statutes placed the burden on the owner); an innocent owner defense allows owners to retain property if they can show they didn't know about or consent to the criminal use; and hardship release is available if seizure causes substantial hardship unrelated to the criminal proceeding.
Despite CAFRA's reforms, civil forfeiture remains controversial. Property owners have no guaranteed right to appointed counsel — unlike criminal defendants, you must hire your own lawyer to fight forfeiture even if you're never charged with a crime. The cost of litigation often exceeds the value of seized property, leading many owners to abandon their claims. Fungible property rules (§ 984) allow the government to seize cash without tracing it to a specific offense — a provision that has been used to seize currency from people carrying legal but suspicious amounts of cash.
Real property receives enhanced protections under § 985: the government cannot seize a home or land before obtaining a court order, and the owner may continue to live in or use the property during forfeiture proceedings.
The equitable sharing program allows the federal government — through the U.S. Marshals Service — to share forfeiture proceeds with state and local law enforcement agencies that participated in the investigation. Critics argue this creates a profit motive for seizures — agencies directly benefit financially from the property they seize. Defenders argue it funds law enforcement and removes criminal profits.
How It Affects You
If you're a traveler and law enforcement has seized your cash: You have strict deadlines that most people don't know about. After seizure, the government has 60 days to send written notice (under § 983). Once you receive notice, you have 35 days to file a claim contesting the forfeiture — missing this deadline typically results in default forfeiture of your property. Filing the claim stops the administrative process and forces the government to file a federal civil lawsuit to keep the property. Contact a forfeiture attorney immediately — the Institute for Justice publishes a guide and can sometimes provide referrals. If the seized amount is below $10,000, the cost of litigation may exceed the value; in that case, consider filing a petition for remission or mitigation directly with the agency (28 CFR Part 9) as a lower-cost alternative. There is no right to appointed counsel — you hire your own lawyer. The legal limit for carrying cash on domestic travel is unlimited; currency itself is not contraband.
If you run a cash-intensive business and received an IRS or bank notice about "structuring": "Structuring" is the practice of breaking large cash deposits into amounts below $10,000 to avoid bank reporting — and it's a federal crime even if the underlying money is legitimate. Banks must file a Currency Transaction Report (CTR) for deposits over $10,000; depositing $9,500 repeatedly to avoid this triggers suspicion. The IRS and DOJ have used structuring laws to seize funds from small business owners who were making smaller deposits out of innocent habit, not criminal intent. If you received a notice or had funds seized under a structuring theory, challenge it immediately — courts have been increasingly skeptical of structuring-only forfeitures where the underlying funds are clearly legal. Congress passed reforms in 2019 limiting structuring forfeitures when the funds are from a lawful source, but enforcement has been uneven.
If you receive a formal notice of civil forfeiture action: The Civil Asset Forfeiture Reform Act of 2000 (§ 983) gives you procedural rights, but you must exercise them within the deadlines. The process: (1) Respond within 35 days of the notice by filing a claim with the relevant agency — this stops administrative forfeiture and forces judicial proceedings; (2) The government must file a civil complaint within 90 days of your claim; (3) You can raise an innocent owner defense — proving you didn't know about or consent to the criminal use of the property. If the seizure creates substantial hardship — you need the car for work, the cash for rent — request a hardship release under § 983(f); you must demonstrate the seizure will harm you in a way unrelated to the alleged criminal activity. Your home receives special protection: under § 985, the government cannot seize real property without a court order, and you may remain during proceedings.
If you're a criminal defendant: If you're convicted, criminal forfeiture (§ 982) allows the court to order forfeiture of property connected to your offense as part of sentencing. Criminal forfeiture is more procedurally protected than civil forfeiture — it requires a conviction and a nexus between the property and the offense.
If you're in state or local law enforcement: Equitable sharing provides your agency with a share of federal forfeiture proceeds. Some states have restricted state-level forfeiture, leading agencies to use federal "adoption" of seizures to access the federal program — a practice that has drawn criticism as circumventing state protections.
State Variations
Federal forfeiture law operates alongside state forfeiture programs:
- Many states have reformed their forfeiture laws — some requiring a criminal conviction before property can be forfeited
- State burden of proof varies from preponderance of evidence to beyond a reasonable doubt
- Some states have eliminated or restricted equitable sharing, preventing local agencies from circumventing stricter state laws through federal adoption
- State forfeiture transparency and reporting requirements vary widely
- Several states now require forfeiture proceeds to go to the general fund rather than law enforcement budgets
Implementing Regulations
- 28 CFR Part 8 — Forfeiture of property (§§ 8.11–8.14 — interplay of administrative and criminal forfeiture proceedings, declaration of administrative forfeiture, disposition of property before forfeiture)
- 28 CFR Part 9 — Petitions for remission or mitigation of forfeitures (§§ 9.3, 9.4 — petitions in administrative and judicial forfeiture cases)
- 28 CFR Part 0 — DOJ organization (§§ 0.86, 0.171 — seizure of gambling devices, judgments, fines, penalties, and forfeitures)
Pending Legislation
- HR 3577 (Rep. Steube, R-FL) — Ban unauthorized wireless phones in detention facilities, attach civil forfeiture and criminal penalties. Status: Introduced.
Recent Developments
- Trump DOJ reinstated and expanded equitable sharing (2025): Attorney General Pam Bondi's January 2025 directive reversed the Biden DOJ's more restrictive approach to equitable sharing and directed federal agencies — particularly DEA and FBI — to aggressively use forfeiture in fentanyl trafficking and other drug cases. The directive explicitly encourages state and local law enforcement to refer seizure cases for federal adoption even when state forfeiture laws are more restrictive. Civil liberties organizations immediately challenged the reversal, arguing it was designed to circumvent state conviction requirements; as of April 2026, no federal court had enjoined the directive.
- State reforms have expanded substantially (2022–2025): North Carolina, Nevada, and several other states enacted conviction-requirement laws during this period, joining New Mexico and others that require a criminal conviction before civil forfeiture can proceed. At least 15 states now have conviction requirements for most property types; a smaller number require conviction for all forfeitures including proceeds. States with civil forfeiture reform have generally seen no increase in crime rates — a finding that has bolstered reformers' arguments that the seizure-as-funding model is not necessary for effective law enforcement.
- Federal reform bills failed in 119th Congress: The bipartisan FAIR Act (Fifth Amendment Integrity Restoration Act), which would have required a criminal conviction for most federal civil forfeitures and removed the profit incentive by directing proceeds to the general fund rather than law enforcement budgets, was introduced in the 119th Congress but failed to advance. Property rights advocates from the right (Institute for Justice, Cato Institute) and civil liberties groups from the left (ACLU) supported the bill; DOJ and law enforcement associations opposed it. No federal conviction requirement bill has ever passed the full Congress.
- Timbs v. Indiana (2019) continues to generate litigation: The Supreme Court's 2019 ruling that the Eighth Amendment's Excessive Fines Clause applies to the states has slowly worked through lower courts. Several state courts have found specific forfeitures unconstitutionally excessive — particularly cases where the value of seized property vastly exceeded the severity of the underlying offense. The standard for "grossly disproportionate" fines remains unsettled, and the Timbs litigation wave is producing a patchwork of state-specific outcomes that could eventually return to the Supreme Court for clarification.