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. 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. The Supreme Court also has invoked the history of civil forfeiture, but for a different purpose. Although the Court has sometimes acknowledged that the fiction underlying civil forfeiture may seem unfair, it has nevertheless upheld forfeiture schemes based on the historical prevalence and acceptance of the practice.
Thus, while both the critics and the Court have used the history of forfeiture actions to support their conclusions, neither side has made any serious attempt to understand this history. This Article closely examines the widespread historical practice of conducting legal actions against both inanimate objects and animals. It is unsatisfying simply to conclude that these trials were the product of irrationality or superstitiousness. Instead, this Article speculates on whether these trials may have performed important social functions for the community. In particular, the trials may have permitted the community to heal itself after the breach of a social norm by creating a narrative whereby a symbolic transgressor of the established order was deemed to be "guilty" of a "crime" and cast beyond the boundaries of the society. This Article then suggests that at least some aspects of modern civil forfeiture law may fulfill a similar function. Still today, a forfeiture proceeding can serve to remove an offensive symbol of wrongdoing from the community, a function that is quite distinct from the desire to punish the culpable individual who may have used the object. Indeed, the importance of this symbolic aspect of civil forfeiture may provide a way of thinking about the Supreme Court's recent jurisprudence in this area.
Yale Journal of Law & Humanities, Vol. 11, No. 1, 1999