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A major new weapon in combatting the drug trade is the civil forfeiture of property that was the instrument or proceeds of the drug trade. Civil forfeiture is an in rem action against the seized property itself and is independent of any criminal proceeding that may be directed at the owner of the property. Because civil (in rem) forfeitures rely on the legal fiction that the property itself is guilty s the government need not indict or convict the property owner.

Because of the nature of a civil forfeiture, innocent owners and third parties such as spouses and commercial lenders who have legitimate ownership interests in forfeited property may find themselves casualties in the war against drugs.' Historically, the innocence of the property owner was no defense to civil forfeiture actions. Likewise, the civil drug forfeiture statute as originally enacted contained only limited statutory protection for innocent owners. In Calero-Toledo v. Pearson Yacht Leasing Co., the Supreme Court, however, recognized that "innocent owners" may have some constitutional protection from civil forfeiture. In amendments to 21 U.S.C. § 881 ("section 881") after the decision in Calero- Toledo, Congress, while increasing the scope of property forfeitable, combined this increase in scope with additional statutory "innocent owner" defenses to forfeiture.

This comment will examine the civil forfeiture statute's "innocent owner" provisions and what constitutes "innocence" within the meaning of those provisions. While decisions from all federal courts will be discussed, this comment focuses on the state of the law in the Eleventh Circuit. Part One will present a brief history of the civil forfeiture statute, the decision in Calero-Toledo, and section 881's "innocent owner" statutory defenses. Part Two will examine each statutory innocent owner provision, how various courts have interpreted them, and subject those interpretations to a critical analysis to determine the more reasoned approach.