Buffalo Law Review
The Enduring Lives of False Legislative Facts: Asset Forfeiture
First Page
1381
Document Type
Article
Abstract
Federal courts have found asset forfeiture constitutional by relying on assertions that have been accepted as true without being established at trial. These “legislative facts” play a central and enduring role not only in jurisprudence but in the broader public policy debate over forfeiture. To date, these assertions have not been subject to careful empirical review. We test three central legislative facts frequently offered as providing a compelling government interest for the use of forfeiture: (1) that forfeiture provides vital funding for law enforcement activities; (2) that forfeited funds are used to reimburse the victims of crime; and (3) that forfeiture plays a crucial role in disrupting organized criminal networks. A thorough review of the evidence finds that none of these factors plays a significant role in the vast majority of forfeiture actions. Further testing of the impacts of forfeiture on policing efficiency indicates no material benefit from forfeiture. With respect to asset forfeiture, legislative facts have long and influential lives despite being fundamentally unsound.
Recommended Citation
Brian Kelly & Taylor de Lavagea,
The Enduring Lives of False Legislative Facts: Asset Forfeiture,
72
Buff. L. Rev.
1381
(2024).
Available at:
https://digitalcommons.law.buffalo.edu/buffalolawreview/vol72/iss4/5
