SCOTUS Takes a Bite Out of Civil Forfeiture


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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22 Responses

  1. Avatar Oscar Gordon says:

    A victory, yes. But I fear that the practice is going to have to be dismantled brick by brick.Report

    • Avatar InMD says:

      Yea but that is how the out of control situation with criminal justice will need to be corrected. None of it was built over night and there’s no magic case or omnibus law that can fix it.Report

      • Avatar Oscar Gordon says:

        I thought CAF was born with one SCOTUS decision allowing the government to file suit against a thing, rather than a person?Report

        • Avatar InMD says:

          The legal history on this particular issue is long and goes back to British maritime laws where vessels could be seized if the owner was involved in some criminal conduct (typically piracy, where charges would be brought against the vessel itself). It pre-exists modern consumer society, the war on drugs, etc., but the war on drugs did reinvigorate the practice.

          It’s one cog in a machine of bad policy. This cog includes federal and many state laws allowing seizure of assets ‘involved in’ criminal activity through an in rem process. It’s technically a civil proceeding so the burden of proof is lower and criminal due process doesn’t apply.Report

          • Avatar George Turner says:

            As I understand it, having spent the last hour debating my attorney, if Amazon had sold $500 worth of Tommy Chong’s bongs, making a tidy $50 in profits, the government could seize almost all $1 trillion of Amazon’s assets, as the company is tightly integrated and those bongs moved through every warehouse.

            That seems to be rather excessive and something our Founders wouldn’t have put up with, since their perspective on government was as former victims of arbitrary and capricious government abuse.Report

            • Avatar InMD says:

              I don’t disagree that it’s a policy decision the founders probably wouldn’t have understood. Of course the context of it is also a post-industrial world they probably couldn’t have imagined either.

              You’d have to pay my hourly rate for an analysis of the hypo.Report

          • Avatar PD Shaw says:

            In addition to admiralty law, there is also the common-law of public nuisances, that essentially authorize a thing injurious to the public good to be subject to an abatement lawsuit, which can include seizure of the nuisance. Nuisances could traditionally be houses of ill-repute, slaughterhouses, and various obstructions in road and waterways. I believe in West Virginia, prosecutors are arguing that certain distributors of opioids are public nuisances.

            Nuisance principles have been the basis of public health and environment laws that impose civil penalties, and by characterizing them as civil proceedings, they avoid requirements of due process, juries or judges, requirements of fault, etc. So, I guess some of the issues are not just old, but they are broader than the war on drugs, and if this piece of yarn is pulled hard enough, a lot might fall out.

            Though I don’t expect a lot to fall out. I think that some of the most disproportionate cases will no longer happen and/or the government will document the basis for its actions better.Report

            • Avatar InMD says:

              I don’t think much will fall out either and think your prediction is probably about right. Maybe there’s a cap on the truly ridiculous cases with high dollar values but the practice itself won’t go away without revisiting the state laws that allow it.Report

    • Avatar North says:

      Well one party is mostly against it and now we have a really solid court opinion against it so there’s definitely some chopping being aimed at the root of it.Report

  2. Avatar Road Scholar says:

    Am I wrong to note that it seems interesting that the Court seems to be equating civil forfeiture with a “fine”? Would that not perhaps open a line of attack against the practice of seizing property absent a conviction (or even being charged)?Report

    • Avatar Em Carpenter says:

      Maybe. The Court is comparing the forfeiture to a fine in that it is punitive, but that doesn’t make it a criminal fine. “It’s not a fine” is one of the arguments raised by the state in denying that it should be covered by the excessive fines clause, but the Court dispensed with that argument without making the leap to it being the same thing as a criminal fine.
      That’s the whole problem with forfeiture- it is punitive, a taking without a conviction or a charge. But I sort of agree with Thomas and Gorsuch (shh don’t tell anyone) that it’s not so much a due process issue, because there is process given (though perhaps inadequate). There is a civil action filed and a hearing held. The catch is that you have to know about it and hire a lawyer or represent yourself. And those cases are styled “US vs. $1000 in United States Currency” or “State v. 2018 Jeep Grand Cherokee”, so it’s as if the owner isn’t even a party.Report

      • Avatar George Turner says:

        There is a process, but in many cases it seems the process is Kafkaesque.

        I think the root problem was that law enforcement or courts were allowed to keep what they took. Seizing drug assets seems to make sense, but at what point does a government entity cross the line into having the same mens rea as a common thief? “Nice Mercedes you got there. I think I’ll take it because I’d like a new Mercedes and you can’t stop me.”

        John Locke argued that although the government has the power to compel a man to charge right up to the muzzle of a cannon, not one dime of his assets can they take. His property was inviolate in a way that his life was not. That protected not only the man’s property, but it also protected the government from the temptation of arbitrarily stealing his property. Opening that door even a little bit has obviously led to abuses and very unjust results.

        One of the key things that makes theft “theft” is that the thief retains the stolen assets, or launders them, or converts them into things like “good will”, ala Robin Hood, Pablo Escobar, El Chapo, or Bernie Sanders et al. States and municipalities had a vested interest in seizing people’s assets so the state could keep those assets, or sell them, or otherwise profit from them, which is no different than the motivations of any sanctimonious thief. Bragging about it, as many law enforcement agencies do, just makes it worse, as it’s the same flagrant abuse of power that any nacro-terrorist cartel engages in. They show up and steal your stuff just to make sure you understand the pecking order, and that is quite different from an even handed enforcement of justice.

        It creates a natural problem if the state retains money paid as fines. If the court keeps it to spend on a new spa for the courthouse, or to otherwise support the operations of the court, their motivations can shift from justice to profit, even personal profit as they pass raises all around.

        Having courts give seized assets or fines to third parties, such as charities or government programs for the poor, just outsources and expands the corruption to include the recipients and whatever kickbacks they put on the table, whether in the form of campaign donations or jobs for nephews.

        Redirecting the money to even the loftiest of purposes, such as aid to starving handicapped trans-gendered sex-trafficked child-slave war refugees, just makes arbitrarily seizing assets all the more justifiable because it’s doing so much good in the world – except for the people lost everything to the court so some politicians can play Robin Hood.

        So my suggestion to strike at the root of the whole problem is to make anyone pay their fines, or an equivalent in seized assets, in US currency, verified as legitimate by court appointed and outside observers, and then put that cash in a pile and burn it in front of everybody. That way the government and its employees makes no more profit from imposing a fine than they would from giving the defendant 50 lashes, so their motivation is more likely to be for justice, social cohesion, and the maintenance of order, not profit.

        Some will scream that the forfeited money could’ve been used for this or that purpose, but realize that it’s only cash that was going into government’s hands, the same government that printed the cash in the first place. It’s just a placeholder, an accounting and trading token. The burned cash was just removed from the M1 money supply as a criminal or civil punishment, and the US Mint and Federal Reserve will fix any imbalance by printing and re-injecting it elsewhere in the economy, out of the reach of both the defendant, the police, and the court system. Of course you could just return the money to the treasury to save the mint some ink, but that wouldn’t have the visual and emotional impact of watching a defendant set his own cash on fire.

        It should fix both the fact and appearance of a potentially corrupting practice, a for-profit law-enforcement system, and remove any motivation for imposing excessive fines.Report

        • Avatar Oscar Gordon says:

          Damn, that’s something to chew on.

          Alternatively, we could structure fines,etc. as thus:

          If there is a victim (i.e. a citizen or their next of kin), all fines, etc. go to the victim as compensation.

          If there is no victim (and the state can not be a victim), then all fines/proceeds* are sent to the highest possible level of government, which collects it all and then evenly divides it back to other budgets. So if CA manages to collect $10M in seized funds and property, that $10M gets pooled with all other fines, etc. from around the US, then evenly divided and sent back to the states as part of education grants, or something not related to criminal justice.

          That’s not as ‘clean’ as you suggest, but it creates enough separation that the incentive to steal from the populace is minimal.

          *Property may not be kept by LE, it must be put up for public auction, with the proceeds going to the federal pool.Report

          • Avatar George Turner says:

            That’s similar to what would work out in practice, but I’m thinking on a more primitive level about assets, money, transgressions, and justice.

            If you steal something or harm somebody, the authorities try to return to stolen property or money to its rightful owner, and perhaps have you pay restitution. That part of justice is pretty simple, trying to undo a wrong and make the victim whole again.

            But with a fine or asset forfeiture, the idea is that you’ve somehow done something illegal (taboo, sinful, criminal, etc) and they want to make sure that you don’t profit from your bad actions, so that crime doesn’t pay, the unjust are not rewarded, etc. in hopes that you change your behavior and everyone else learns from your mistake.

            Psychologically, at an early-human primitive level, the village council, elders, chief, judge, or whoever, has two basic ways to make sure you don’t retain your ill gotten gains and don’t profit from your transgressions.

            One way is to act as a stand-in for the aggrieved party who is seeking vengeance. The vengeful victim doesn’t file a suit to take your car, he bashes it with a sledge-hammer until it’s a heap of metal, as instincts dictate. So perhaps the village judge goes into your hut with a club and busts up a bunch of your clay pots, dumps your stored grain on the ground and pees on it, and maybe burns down your hut for good measure. No transfer of property occurs, only destruction, as if the judge is expressing Zeus and Hera’s furious wrath. Your transgression doesn’t have a clear human victim, at least not one who lives in the village, but the god’s were furious and the order of the universe had to be set right.

            The other method to get rid of your ill-gotten gains is for the judge, tribal elders, or chief to simply confiscate a bunch of your stuff, such as Menelaus taking Achilles booty in a fit rage. That is a property transfer, and it both raises questions of a conflict of interest and questions about whether the action is merely a display of power and greed.

            Taking your money, or your war booty, and putting it back into the national treasury for redistribution could still be the act of an angry and greedy king claiming his subject’s wealth, in a way that smashing your clay pots or burning your hut was not. Burning your hut is a different expression of justice than seizing your hut and giving it to someone else, perhaps the king’s cousin. I suspect that we might mentally process these two courses of action quite differently, even if at the macro-economic level they might boil down to almost the same thing, especially if we’re burning cash and reprinting it back at the mint, as if that washes clean the blood money.

            I think we still bump into this difference today. If the Federales raid Pablo Escobar and find millions in cash, the Colombian government takes the cash and in theory redistributes it. But if they raided too early, before the cash came back from Miami, the police just find a warehouse full of cocaine. It’s worth as much as the cash, but instead of redistributing it or selling it on the black market, the government sets it on fire (at least in theory, because I’ve unwisely chosen Colombia as an example).

            Well that’s clearly a destruction of physical wealth, for those who measure their wealth in kilos. But should cash be treated any differently? All those Benjamin Franklins are, after all, also drug paraphernalia, and only the timing of the raid determined the physical form the X million dollars of illegal assets that are being stripped from the cartel.

            Now perhaps Pablo is a bad example because his case involves foreign trade, but if it’s not okay for Pablo to make hundreds of millions from illegal smuggling, why is it okay if the nation of Colombia makes the same amount by seizing Pablo’s money? Doesn’t that just make Pablo some kind of intermediary between a supplier country and a junkie country? Do the heavens really care whether the illegal cash was in the hands of Medellin narco traffickers or in the hands of corrupt Medellin cops and judges who were, at some point, getting paid off by Medellin narco traffickers? The Colombian government will of course spread that money around to the people, but Pablo was doing that anyway. That’s why people wouldn’t turn him in.

            Anyway, burning the cash would mean there was no net transfer of illegal money between the US and Columbia, and perhaps that value of the money would be reintroduced in the US by the Treasury Dept, or perhaps not. That’s a question for economic and monetary theorists about whether actual wealth was snorted up people’s noses or whether that wealth should still be floating around somewhere.

            I guess in the part the difference is purely conceptual. When you pay your income taxes, you could say that you transfer money to the IRS. Another way to look at it is that the IRS verifies that your bank account was decreased by X amount (money just disappears from your balance in the form of ones and zeros), and then an exactly equal amount is magically added to the Treasury, also in the form of ones and zeros, so that the total supply of money is unaffected. On the one hand, money is being transferred from you to the IRS. On the other hand, the government is just compelling you to destroy a part of your wealth and then recreating the same sum in their own coffers. The difference is just the mental conception of what happens.

            In that view my scheme, aside from the display of burning cash (which I suppose is like a public flogging or hanging, a visual warning to all involved or interested in a case) hinges on if and where an equivalent amount of money appears. In both cases the defendant loses some of his wealth, but it reappears in the US treasury (or not, depending on economic policy), and not in the court system or in any law enforcement agency.

            Operationally, where that wealth reappears might be all that matters, which would be an accountant’s answer. But there’s also the possibility that psychologically it does matter whether the court’s action is seen to be raw destruction (appeasing the gods and restoring the proper order to the universe), instead of a taking, which is the act of a greedy and grasping king.Report

  3. Avatar PD Shaw says:

    Good piece. One small correction: in 1833, the SCOTUS wasn’t grappling with which Bill of Rights were incorporated by the 14th Amendment, unless there is another Taney conspiracy that we now know is true.Report

  4. Avatar Aaron David says:

    One step in the right direction, now to start work on the next ones.

    Excellent piece Em.Report

  5. Avatar JoeSal says:

    This is a pretty good post Em.
    (shoot Aaron beat me to it, ha)Report

  6. Avatar greginak says:

    This is good news that is for sure. What is additionally a bit funny is that a meme running around conservative facebook is that Ginsburg has been missing and not seen for a long time. And she just returned and doing a Good Thing.Report

  7. Avatar Burt Likko says:

    Let me tell you about a man named Clint Bolick.

    1. Institute for Justice has been fighting the good fight on asset forfeitures for a long time. I knew one of its former directors, Clint Bolick, when I was a younger attorney and more right-leaning. Bolick has written extensively about how they are both due process violations (takings without adequate process) and excessive fines (as decided here).

    2. Bolick also wrote about how the Slaughter-House Cases were wrongly decided. He was no fan of using due process for incorporation, and believes that the Privileges and Immunities Clause of the Fourteenth Amendment is the better vehicle for incorporation both on the face of the text and congruent with the intent of the Framers (referring to the Framers of the 14th, here, not the Philly crew from 1789).

    3. Bolick has also singled out for particular praise Justice Thomas, for what Bolick believes to be the best and most consistent jurisprudence adhering to text and original intent of the Constitution.

    4. The Clint Bolick I interacted with would have been ecstatic about this opinion, in particular about Thomas’ concurrence. The Clint Bolick of 2019 will necessarily have to be just a bit more sedate about this than the Clint Bolick of 19muttermutter, because in 2016 he became the 44th person to serve as Associate Justice of the Supreme Court of Arizona, where he is currently a mid-tier candidate for the next Trump Administration SCOTUS appointment and probably a top-tier candidate for the next Trump Administration 9th Circuit appointment.

    So my question now is… so what? So there’s this conservative-libertarian strain of thought about sidestepping or eventually overruling the Slaughter-House Cases, the fall of which would be mourned by exactly no one from any point on the spectrum. Doing this wouldn’t overturn any of the big Due Process cases that have over the past century or so curbed a lot of the more awful things states have done to their citizens. (Wasn’t it just yesterday we were talking about Barnette? Wouldn’t have had Barnette without due process incorporation … unless you could have had it through P&I incorporation instead.)

    Scholars, judges, and activists like Bolick have been intellectually pushing on the P&I front for a long time but I’m not sure what substantive changes in the law result from their theoretical success. And it’s weird for Gorsuch to agree with this school of thought but not join Thomas’ opinion based largely on this exact idea.

    To the sort of person who isn’t a Con Law geek, this is pretty picayune stuff. To this Con Law geek shifted away from the Bolickian point of view though two decades of life and legal experience, it seems oddly ineffectual, and therefore suspicious, that this idea is moving into prominence.Report

    • Avatar Saul Degraw says:

      Libertarians get caught in the weirdest bugbears. Sometimes only seemingly to hate the parts of the Constitution that love like the 14th Amendment and incorporation especially when Black and Douglas were able to revive it.

      I’m generally a Thomas skeptic but he seems to appeal to a few because of his very idiosyncratic jurisprudence. I don’t know if the P and I clause is gaining appeal per se or is just a crank theory that never went away for people who hate the expansive power of the 14th but realize allowing the Roy Moore’s of the world to declare that the Alabama’s of the world don’t need religious liberty is a bad idea.

      Me personsally? Justice Douglas had a good quote on how the 14th was the best patent medicine remedy to injustice. I like that quote. I suspect a lot of hate for incorporation is hate for the idea of substantive due process. Substantive Due Process has always been hated by conservativesReport