An Anthropological Approach to Modern Forfeiture Law: The Symbolic Function of Legal Actions Against Objects

In 1996 the Supreme Court issued two opinions, Bennis v. Michigan and United States v. Ursery, emphasizing the constitutionality of civil forfeiture schemes under both the Due Process and Double Jeopardy Clauses of the Fifth Amendment. These decisions, and civil forfeiture schemes generally, have faced strong criticism from scholars and civil libertarians. Critics point out that law enforcement agencies "perpetrate astonishing outrages on owners of private property through forfeitures," and they argue that civil forfeiture runs afoul of any number of constitutionally-based guarantees, from the Fourth Amendment's warrant requirement to the Eighth Amendment's concept of proportional punishment. Among the arguments advanced against civil forfeiture has been one based on its origins.

The so-called "legal fiction" underlying forfeiture is that the government is acting against the property itself, rather than against the owner. Commentators have traced this fiction to the Middle Ages. Under the law of the deodand, an inanimate object that caused a death was deemed to be "guilty" of a crime and therefore was offered to God through forfeiture to the King. Those opposed to today's forfeiture laws have seized upon this history to demonstrate the supposedly senseless origins of forfeiture.

"Implicit in this discussion is the absurdity of perpetuating a system that attributed evil to an ox, a tree, a boat, and a broadsword."