An ordinary criminal proceeding will do. We come, then, to the facilitation doctrine proper. Today, countless forfeitures take place under the facilitation doctrine. The property is personified. Facilitation forfeiture can make no pretense at being remedial because it need take no measure of the crime that gives rise to it.
Minor crimes can lead to major facilitation forfeitures.
The facilitation doctrine is boundless in practice because it is groundless in principle. Yet it drives our forfeiture law and practice today, and this bill leaves it in place. The inclusion of that defense in all federal forfeiture statutes is to be welcomed, of course, even if the bill leaves the burden on the owner to prove his innocence, and even if such proof may be difficult or may be otherwise problematic. None of this, however, goes to the facilitation rationale for forfeiture. This substantive foundation of so much of our civil forfeiture law, the handmaiden of the personification doctrine, must be torn up, root and branch.