Student Review:

Guerra�s article concerns individuals who are subjected to the civil forfeiture law for drug offenses on their property.  When a drug offense occurs at an owner's home, the owners must prove that they had no knowledge of the criminal activity or that they took all reasonable steps to prevent the illegal conduct in order to prevent the confiscation of their property by the government.  Guerra finds that many times this law, created to fight the war on drugs, has resulted in disastrous situations for innocent wives and parents.  Guerra questions if the government should invade family privacy and force uninvolved family members to violate the principles of family preservation.
      Guerra first notes that the law has historically protected family relationships even when such protection harms law enforcement activities.  Constitutional provisions, (such as the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment), provide that the home and family life are considered to be private and have additional protections from governmental interference.  Additional, the principles of American criminal law usually limit prosecution to blameworthy acts rather than omissions.  Individuals are not usually required by law to report criminal activity, even if it occurs within the household.  Such laws shield the family from government scrutiny.  Additionally, some laws were designed specifically to protect the institution of the family.  The law provides that married couples can use the adverse testimony privilege to refuse to testify against each other, or they can also invoke a privilege to testify without revealing spousal confidences.  In many states, parents must be present for a minor's confession to be valid.  These examples demonstrate that family relationships have special privileges under the law.
      While forfeiture has existed since the colonial era, the advent of the war on drugs has dramatically increased the scope of forfeiture laws.  Now any type of drug offense on the property makes all of the property subject to forfeiture.  The civil forfeiture process allows the government to seize the property of individuals who have not themselves violated the law.  This process requires the family to hire legal representation at their own expense.  In order to prevent forfeiture, the owner must establish that she neither had knowledge of nor consented to the drug offense.  However, Guerra demonstrates that such a standard raises many interpretive problems, and the application of the law has raised practical problems.
      Guerra then demonstrates how the forfeiture laws have affected the family, especially harming innocent wives whose husbands are involved in drug-dealing and uninvolved parents whose children are drug-dealers.  Often wives home are forfeited if the court find that the wife consented to the illegal activity.  Consent occurs if the court finds the wife did not take all reasonable steps to eliminate the drug activity.    Some courts have suggested that reasonable steps would include partition and divorce.  However, these suggestions fail to take into account the realities of the institution of marriage.  Many wives are hesitant to subject their husbands to legal punishment, especially in cases in which the husbands are abusive or when the wife has small children and depends on the husband for support.  Likewise, courts also find that parents who have not evicted their children or reported them to the police have not take all reasonable steps.  However these attitudes fail to take into account the special circumstances involved in a family relationship.
      Guerra urges that lawmakers eliminate the unfairness of civil asset forfeiture laws.  Also she believes that courts need to change their perspective on what constitutes reasonable steps for uninvolved family members.  Guerra states that courts should recognize the value of preserving the family and the importance of marital bonds.  Upon evaluation, the civil forfeiture law has placed more importance on the war against drugs rather than the preservation of the family.  Guerra urges the courts to once again recognize the importance of family values.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999