Narrowing the Scope of Civil Drug Forfeiture: Section 881, Substantial Connection and the Eighth Amendment

This Note offers two justifications for narrowing the scope of section 881 forfeiture. Part I argues that courts should apply the substantial connection test to section 881 forfeitures. This Part analyzes the statute using the traditional tools of statutory interpretation. While the text of the statute seems to support the broadest possible interpretation, the legislative history and context of adoption suggest that the substantial connection test is consistent with Congressional intent. In amending section 881, subsequent Congresses have favored application of the substantial connection test. Consistent with this narrower reading, present strategy in the “war on drugs” focuses stiff penalties on principal traffickers; individual users receive significantly more lenient treatment. Part II argues that eighth amendment review should limit section 881 forfeiture. Section II.A argues that section 881 forfeiture, despite its civil label, functions as a criminal punishment to which constitutional protections should be applied. Section II.B argues, in the alternative, that the history of the eighth amendment and recent Supreme Court analysis justifies eighth amendment review in even purely civil cases where the government is the party seeking forfeiture. Finally, Part III engages each of the narrowing processes. First, the substantial connection cases denying forfeiture are harmonized by development of a “second-degree facilitation” test. Second, this Part identifies the seeds of eighth amendment values in the substantial connection cases. Section III.C suggests the circumstances in and the methods by which courts should apply eighth amendment review to section 881 forfeiture. Applying these eighth amendment principles will protect the rights of claimants without impeding the effort to curtail drug trafficking.