Clear and Convincing Civility: Applying the Civil Commitment Standard of Proof to Civil Asset Forfeiture
68 Am. U. L. Rev. 2257 (2019).
* Senior Staff Member, American University Law Review, Volume 69; J.D. Candidate, May 2020, American University Washington College of Law; B.A., Politics, History, 2008, Lake Forest College. I extend my gratitude to Professor Stephen Wermiel for his guidance, mentorship, and support during the publicationprocess. I would also like to thank the diligent, hard-working staff of the American University Law Review. Finally, my profound appreciation to Kaylynn Noethlich, Marie-Christine Prudhomme, and Jean Sahuc—without whose enduring love and support nothing would be possible.
In a time of deep political divisions in nearly every area, civil asset forfeiture is the rare topic that draws opprobrium from both the right and the left. Civil libertarians despise an overbearing government stealing private property from otherwise innocent citizens, and Progressives object to the disproportionate impact forfeiture has on low-income and minority communities. Scholars have written much about the constitutionality of civil in remforfeiture; however, missing from the discussion is an examination of the low evidentiary burden the government must hurdle to successfully confiscate private property. Additionally, the similarity between civil commitment proceedings and civil in remforfeiture proceedings lends a comparison that implies the latter requires a higher standard of proof.
This Comment argues that due process demands courts in civil in remforefeiture proceedings apply a clear and convincing standard of proof. It does so by using the Supreme Court’s framework in Mathews v. Eldridge, as applied to civil commitment in Addington v. Texas, and concludes that only the clear and convincing standard is constitutionally acceptable. Civil commitment and civil in remforfeiture are both quasi-criminal proceedings that run the risk of more than the mere deprivation of money. Due process requires that these serious deprivations occur only after the government satisfies a clearand convincing standard of proof.