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- Title
Procedural Whipsaw: Allocating the Burden of Proving Reasonable Notice to Prisoners of Forfeiture Proceedings and the (Renewed) Call for Actual Notice.
- Authors
WYNN, JAMISON
- Abstract
In 2019, the Second Circuit determined that the government should bear the burden of proving the prison mail distribution procedures it employed to provide inmates with notice of forfeiture proceedings were constitutionally adequate. This was the most recent decision involved in a circuit split on this burdenallocation issue, with other circuits dictating that a presumption of adequacy exists when notice is sent by mail to the inmate's institution of incarceration. This Recent Development argues that the Second Circuit was correct in refusing such a presumption for multiple reasons, including normative and long-standing legal principles. Moreover, the Second Circuit came to the correct result within the bounds set by the Supreme Court on this issue, which include the Court's previous holding that actual notice is not required in this context. However, given the distinct circumstances in which inmates find themselves, for a myriad of reasons, placing the burden on the government is not enough, and actual notice should be required in this forfeiture context. Longstanding Due Process notice principles, fairness concerns, judicial economy, and specifically the Court's holding in Mathews v. Eldridge, all point to why actual notice should be required in this context. This discussion occurs against the backdrop of the troubled civil asset forfeiture system, which is rife with ill incentives for the government to forfeit the property of its citizens, often without much required in the way of proof that the property was actually connected to criminal activity. Given the problems of the civil asset forfeiture system generally, as well as the factually distinct situations of inmates by virtue of their confinement, at a minimum the government should bear the burden in this context, but ideally actual notice should be required.
- Subjects
UNITED States; LEGAL notice; UNITED States. Court of Appeals (2nd Circuit); LEGAL status of prisoners; FORFEITURE lawsuits; PROPERTY
- Publication
North Carolina Law Review, 2020, Vol 99, Issue 1, p247
- ISSN
0029-2524
- Publication type
Article