David F. Benson


Civil forfeiture, the process whereby all property "substantially connected" to illegal activity is forfeited to the United States government, plays an integral role in the United States criminal justice system, as it ensures that individuals do not profit from crime, and the proceeds from such actions help to finance the war on drugs and build new prisons. Because civil forfeiture encroaches upon an individual's use and possession of property, Congress has established detailed procedures, including a notice requirement and the right to judicially contest the civil forfeiture action, that must be strictly followed before the Government is entitled to claim the property in question. Against this background, this Comment evaluates the current split amongst the United States Courts of Appeals regarding the issue of how to resolve civil forfeiture actions in which due process has been violated because the defendant did not receive proper notice of an administrative forfeiture proceeding, and the statute of limitations for filing a judicial forfeiture action has expired when the government becomes aware of this fact. Specifically, this Comment criticizes the Sixth Circuit's recent decision, United States v. Dusenbery, in which the court concluded that the proper remedy is to restore the claimant's right to judicially contest the forfeiture action and to put the government to its proofs under a probable cause standard, and argues that the Supreme Court of the United States should have granted Dusenbery's petition for writ of certiorari and reversed the Sixth Circuit's decision in Dusenbery because the reasons the majority cites to buttress its holding have no foundation in the law.

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