Challenge to Civil Forfeiture Law? Violation of Due Process

Atlantic Legal submitted an amicus brief in support of Institute for Justice in their challenge to New Jersey’s civil forfeiture law, N.J.S.A. 2C:64-a. IJ represents the mother of a teenager who pled guilty to charges of possession and repeated sale of marijuana (on six separate occasions) to an undercover police officer. With respect to five of the sales, the teen was driving a car owned by his mother. The State commenced civil forfeiture proceedings, alleging that the vehicle was used in furtherance of illegal activities; the mother counterclaimed, challenging the constitutionality of the forfeiture law on due process grounds. The trial (Superior) court entered judgment declaring the civil forfeiture law unconstitutional.

In a civil forfeiture proceeding, unlike a criminal prosecution, the state has to prove only a preponderance of evidence (not beyond a reasonable doubt) that the seized property was connected to unlawful activity; the state does not need to prove criminal activity by the owner of the seized property, nor do criminal charges even need to be filed against the owner of the seized property; property can be forfeited even when criminal charges against the owner have been dismissed. In the 3-year period 1998-2000, New Jersey realized almost $32 million through civil forfeitures. These funds were used to pay for furniture, automobiles, equipment, office renovations, overtime pay, the expenses of attending a law enforcement convention and golf outings.

Atlantic Legal represented the National Association of Criminal Defense Lawyers and the Association of Criminal Defense Lawyers of New Jersey as amici.