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REBUTTING THE PRESUMPTION: A CONSTITUTIONAL THEORY OF PRE-TRIAL ASSET SEIZURES AND PROCEDURAL DUE PROCESS.

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Title: REBUTTING THE PRESUMPTION: A CONSTITUTIONAL THEORY OF PRE-TRIAL ASSET SEIZURES AND PROCEDURAL DUE PROCESS.
Authors: Rabin, Benjamin Y.
Source: Journal of Criminal Law & Criminology. Spring2026, Vol. 116 Issue 2, p563-599. 37p.
Subjects: Asset forfeiture, Constitutional law, Searches & seizures (Law), United States. Supreme Court, Criminal law, Civil rights, Due process of law
Abstract: In this Comment, I trace the origins and examine the current state of the doctrine on pre-trial asset seizures, then argue for a new approach grounded in procedural due process and constitutional theory. The existing frameworks for assessing due process in these cases fall into three categories. The first grants the government broad presumptive validity for pre-trial seizures. The second applies a utilitarian balancing test, following the Supreme Court's reasoning in Mathews v. Eldridge and Connecticut v. Doehr. The third, illustrated by the recent decision in Culley v. Marshall, relies on comparisons to historical practice. I argue that each of these approaches falls short. Courts should instead adopt a framework that begins with a presumption against pre-trial seizures, which the government could overcome by showing a compelling interest in the property or the presence of exigent circumstances justifying continued retention, drawing on principles from First and Fourth Amendment jurisprudence. This approach aims to correct structural imbalances, remove harmful incentives, and align civil and criminal applications of the Due Process Clause of the Fifth and Fourteenth Amendments. [ABSTRACT FROM AUTHOR]
Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
Database: Psychology and Behavioral Sciences Collection
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  Data: <searchLink fieldCode="DE" term="%22Asset+forfeiture%22">Asset forfeiture</searchLink><br /><searchLink fieldCode="DE" term="%22Constitutional+law%22">Constitutional law</searchLink><br /><searchLink fieldCode="DE" term="%22Searches+%26+seizures+%28Law%29%22">Searches & seizures (Law)</searchLink><br /><searchLink fieldCode="DE" term="%22United+States%2E+Supreme+Court%22">United States. Supreme Court</searchLink><br /><searchLink fieldCode="DE" term="%22Criminal+law%22">Criminal law</searchLink><br /><searchLink fieldCode="DE" term="%22Civil+rights%22">Civil rights</searchLink><br /><searchLink fieldCode="DE" term="%22Due+process+of+law%22">Due process of law</searchLink>
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  Data: In this Comment, I trace the origins and examine the current state of the doctrine on pre-trial asset seizures, then argue for a new approach grounded in procedural due process and constitutional theory. The existing frameworks for assessing due process in these cases fall into three categories. The first grants the government broad presumptive validity for pre-trial seizures. The second applies a utilitarian balancing test, following the Supreme Court's reasoning in Mathews v. Eldridge and Connecticut v. Doehr. The third, illustrated by the recent decision in Culley v. Marshall, relies on comparisons to historical practice. I argue that each of these approaches falls short. Courts should instead adopt a framework that begins with a presumption against pre-trial seizures, which the government could overcome by showing a compelling interest in the property or the presence of exigent circumstances justifying continued retention, drawing on principles from First and Fourth Amendment jurisprudence. This approach aims to correct structural imbalances, remove harmful incentives, and align civil and criminal applications of the Due Process Clause of the Fifth and Fourteenth Amendments. [ABSTRACT FROM AUTHOR]
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  Data: <i>Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract.</i> (Copyright applies to all Abstracts.)
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        Text: English
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      – SubjectFull: Asset forfeiture
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      – SubjectFull: Constitutional law
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      – SubjectFull: Searches & seizures (Law)
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      – SubjectFull: United States. Supreme Court
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      – SubjectFull: Criminal law
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      – SubjectFull: Civil rights
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      – SubjectFull: Due process of law
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              Text: Spring2026
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