Supreme Court Won't Hear Case, But Justice Thomas Questions Constitutionality Of Asset Forfeiture

from the about-freaking-time dept

We've been writing about the sheer insanity of asset forfeiture for many, many years. If you happen to have missed it, civil asset forfeiture is the process by which the government can just take your stuff by arguing that it must have been the proceeds of criminal activity. They literally file a lawsuit against your stuff, not you. And, here's the real kicker: in most places, they never have to file any lawsuits about the actual crime, let alone get a conviction. They just get to take your stuff, say that it must have been the proceeds of a crime, and unless you go through the insanely expensive and burdensome process of demanding it back, they effectively get to walk off with your stuff. Law enforcement has literally referred to the process as going shopping. Most people who understand what's going on recognize that it's just state-sponsored theft.

I'm constantly amazed to find people who simply don't believe civil asset forfeiture could possibly work the way it does. The whole process is so crazy and so lacking in basic due process, that many people literally find it unbelievable. And while some states have moved towards requiring a criminal conviction to keep the stuff, many don't have that, and our President and Attorney General are huge fans of civil asset forfeiture -- so it's unlikely to change any time soon.

That is, unless the courts get involved. While the Supreme Court on Monday declined to hear an appeal on yet another egregious case of civil asset forfeiture, Justice Clarence Thomas issued an accompanying statement suggesting that he's having trouble understanding how civil asset forfeiture could possibly be legal in its current form. The case in question is egregious, but not all that unlike many other cases we've written about. People travelling with a large sum of cash (for a perfectly legit reason) are stripped of the cash by law enforcement who doesn't believe their reasons -- and then never files any criminal charges or anything, but just takes off with the cash:

Early in the morning on April 1, 2013, a police officer stopped James Leonard for a traffic infraction along aknown drug corridor. During a search of the vehicle, the officer found a safe in the trunk. Leonard and his passenger, Nicosa Kane, gave conflicting stories about the contents of the safe, with Leonard at one point indicating that it belonged to his mother, who is the petitioner here. The officer obtained a search warrant and discovered that the safe contained $201,100 and a bill of sale for a Pennsylvania home. The State initiated civil forfeiture proceedings against the $201,100 on the ground that it was substantially connected to criminal activity, namely, narcotics sales.

Of course, no criminal charges were ever filed against any of the individuals related to this. The government just took the money. The lower courts all sided with law enforcement, and now the case had a chance to go before the Supreme Court. Unfortunately, it passed on the case (as it does with most petitions), but Thomas is clearly troubled by all of this:

... civil forfeiture has in recent decades become widespread and highly profitable.... And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.... This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights.... In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver.... In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money.... He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up. These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.... Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

From there, Justice Thomas looks through the historic rationale that has allowed these laws to remain on the books, and finds some problems, especially concerning how differently the law is being used, and the general conflation among some of the criminal procedures and civil procedures:

The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding.... This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.”... Other early statutes also provided for the forfeiture of pirate ships.... These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime.... And, because these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally.... In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation... I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons. First, historical forfeiture laws were narrower in most respects than modern ones.... Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts.... These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods).... Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings... Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt....

Unfortunately, for procedural reasons (the people who had their money seized didn't challenge the constitutionality at the lower courts and only did so after losing), the Supreme Court has to reject this case. However, Thomas' pretty clear message is that at least one sitting Justice is very troubled with the idea that civil asset forfeiture as practiced today in many states (and by the federal government) could possibly be considered constitutional.

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Filed Under: asset forfeiture, civil asset forfeiture, clarence thomas, due process, supreme court