Resolving Civil Forfeiture Disputes

Civil forfeiture disputes regarding cash are some of the most difficult to resolve due to the psychological and structural nature of these disputes. However, as these disputes arise fairly frequently, tools are needed for judges and the judicial system as a whole to resolve them. While legislative action could help resolve these disputes by changing the legal framework within which they occur, until that time, judges are tasked with resolving civil forfeiture actions. Part II of this Article describes the issue of civil forfeiture, and the legal mechanisms that allow the government to seize control of assets without a criminal conviction. It also describes the legal mechanisms that individuals who have had their assets seized can use to try to recover these assets, and shows how these recoveries are treated as civil, rather than criminal, matters that proceed against the property itself rather than the individual. Part III discusses the nature of these civil forfeiture disputes from a dispute resolution perspective and explores why these suits are unlikely to settle despite being civil matters. In particular, this Part describes the barriers to resolution that these conflicts have to overcome, including both structural barriers as well as psychological barriers that impact both the government and the defendants. Part IV looks to modern trends in judging to see how judges can and should respond to conflicts such as civil forfeiture that are unlikely to settle on their own. The managerial style of judging is now ascendant both in the civil and criminal contexts. Under the managerial style of judging, the management of cases is more important than any particular trial, and judges attempt to involve themselves in cases in order to promote settlement. Under this conception of the judicial role, judges can take an active role in encouraging settlement of civil forfeiture disputes. Part V uses the lens of dispute resolution to guide judges using this managerial role to help settle civil forfeiture disputes. It encourages judges to analyze the structure of these disputes to better understand how to manage these cases appropriately. This Part suggests that judges can encourage settlement by changing the parties’ alternatives, changing the bargaining zone, and removing the zero sum nature of the disputes through procedural mechanisms. The Article then ends with a brief conclusion that suggests areas for further improvement of these disputes.