Civil Forfeiture (and Justice Thomas)

[Snowboarder_Bo]

Since it began not long ago, I’ve been a big fan of Mimesis Law, finding it on par with Lawfare, Popehat and SCOTUSblog. I’m not a lawyer but I do enjoy learning and reading about the law and legal procedures, so I visit these sites regularly. Some of them have grown so much in the last couple of years that I don’t always have time to read everything new on the site, which is fine as it gives me stuff to read when I’ve gone thru the things that really grabbed my attention.

Today, I finally got around to reading an old post by Andrew Fleischmann titled Justice Thomas: Civil Forfeiture May Violate Due Process. Here is the opening paragraph:[

The Supreme Court recently denied cert in one of those classic cases: good facts mixed with incomplete lawyering. But in a [url=https://www.supremecourt.gov/orders/courtorders/030617zor_6j37.pdf]stirring dissent](mimesislaw.com), Justice Thomas may have provided the roadmap to a decision that could rock the foundations of our august kleptocracy.

The crux of the biscuit seems to be that Justice Thomas referred to forfeiture as punishment:

When a state wishes to punish one of its citizens, it ordinarily proceeds against the defendant personally (known as “in personam”), and in many cases it must provide the defendant with full criminal procedural protections. Nevertheless, for reasons discussed below, this Court permits prosecutors seeking forfeiture to proceed against the property (known as “in rem”) and to do so civilly.

But back in 1996, in a decision Justice Thomas concurred with (US v. Ursery), Chief Justice Rehnquist wrote:

In rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause.

Mr. Fleischman says that Justice Thomas’s concurrence was motivated by his originalist view that Double Jeopardy only provides that there cannot be multiple prosecutions but that multiple punishments are fine (legally).

I can’t properly paraphrase this next bit, so I’m going to quote it:

But if Thomas starts from the premise that civil forfeiture is punishment, how can we justify a scheme that takes property without the full constitutional protections of a criminal trial? Thomas explains:

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.

In other words, the current forfeiture regime is justified by history. If we could historically seize assets without naming the owners as criminals, we can do so now. But Thomas points out that historically, forfeiture laws were a lot narrower than the ones we see now. The fledgling Republic wasn’t choosing between prosecuting a person or his stuff, they were choosing between prosecuting his stuff and suffering continued piracy as the owner stayed safely out of reach:

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.

More than that, they often extended far more protections to the accused than we see today, including the duty to prove guilt beyond a reasonable doubt.

Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).

Mr. Fleischman then gets to his point (bolded):

By claiming a historical precedent, then ignoring it, the government has been able to turn civil forfeiture into a huge revenue generator. And that incentive, mixed with minimal due process protections, has turned a band-aid for budget shortfalls into a recipe for abuse.

It’s clear what Justice Thomas intends with this dissent. To be cited in future cases. To lead some other smart lawyer to claim that a forfeiture scheme violates his client’s due process rights by failing to afford him protections more like those of a criminal trial. Just as Justice Breyer has spent the past few years trying to set up the pins to knock down the death penalty, Thomas is trying to get the elements together to allow a sweeping new rule on civil forfeiture.

So, for discussion:

1. In what ways is this view of civil forfeiture’s history and current practice accurate and/or inaccurate?

B. Do you think it likely that Justice Thomas is doing as Mr. Fleischman believes? Why or why not?

Ω. Hi, Opal!

[Tee]

I believe he signaled, because others believe he signaled, and there was an article about it in the Atlantic. To me it’s like hearing that Mount Rushmore has expressed disapproval of the Trump Administration, it’s an event, but then I don’t really keep up with what the Justices do. I only notice when they generate news, and I’ve never noticed much about Clarence Thomas in print during his tenure.

My father was a career cop who studied law later in life and became an attorney, and civil forfeiture (which he called asset seizure) was one of things we’d talk about in the 90s, along with the then-current militarization of police departments. He was a second generation LEO who often didn’t have a ticket book on him while working; he did not understand the mindset (as I don’t) of aggressive policing or the sense that the public is mostly guilty until proven otherwise. He died years ago and I can no longer tap into that perspective.

Fast forward a decade or so, in a strange twist I find myself working for an elected NH politician. I got to see rank-and-file officers aligning themselves against legislation that they opposed, and I didn’t care for it at all. I think it was intended to present a united and mostly silent front, but the effect is an aggrieved wall of uniforms filling a room, staring down legislators. It’s unsettling. It was the same flavor of unsettling that union workers liked to use against people who might cross them to go to work, but that might be a total coincidence.

Police associations defend civil forfeiture, and I don’t think anyone else does. The reasons they give are current reasons, like the recent drug epidemic. They don’t speak of how the practice grew and rooted itself and became a revenue stream; they don’t acknowledge abuses of the system or of hardships inflicted on innocent people – maybe because they don’t see any. And they tend to speak as one entity in a tightly controlled manner. So, no, I can’t consider them impartial, and I doubt their ability to police themselves enough to avoid a crisis of civil liberties. I see no reason to dispute anything Thomas has said about the practice, and if his goal is to effect a drastic and permanent change, I hope he gets the opportunity.