Both civil and criminal forfeiture proceedings are brought under a variety of frameworks. It is important to understand the differences between the frameworks, because they have important implications for how the forfeiture proceeding functions. Here I describe the jurisdictional component of the forfeiture proceeding.
There are two types of jurisdiction here: in personam and in rem. In personam (literally, “against the person”) proceedings identify a person individual as party to the lawsuit. In both civil and criminal in personam proceedings, the case is filed against a person who is listed in the pleading caption (ie, Roe v. Wade, or People v. Bowen). This places the individual under the court’s jurisdiction and allows the court to lodge a judgment implicating the individual.
In rem (literally, “against the thing”) proceedings allow the court to obtain jurisdiction against the property, not the wrongdoer, under the fiction that the property is literally guilty of a crime. In of itself, this is a strange presumption, because it presumes criminality. I read this as fundamentally unfair, because the presumption of criminality is simply that: a presumption. The subject of an in rem proceeding is the property itself, and is reflected in the pleading caption (ie, United States v. 404 N. 10th St., or One 2011 BMW v. Virginia). In this proceeding, notice is supposed to be served to all persons who have an interest in the property; they may then file a response as a claimant, and be heard in a proceeding where the court decides which party has the better claim to the property.
In my next post I’ll develop the description of the legal theories further and discuss the methods of forfeiture: summary, administrative, criminal, and civil forfeitures.