Forfeiture Laws, How are they constitutional?

[Gfactor]

I think Justice Thomas (in a rare moment of clarity) succinctly answered the treis’s Constitutional arguments:

This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable.

Bennis v. Michigan (concurring): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=u10205

The remainder of this paragraph and the next one are also instructive, if only tangentially so:

As detailed in the Court’s opinion and the cases cited therein, forfeiture of property without proof of the owner’s wrongdoing, merely because it was “used” in or was an “instrumentality” of crime has been permitted in England and this country, both before and after the adoption of the Fifth and Fourteenth Amendments. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 619 (1990) (plurality opinion) (a process of law that can show the sanction of settled usage both in England and in this country must be taken to be due process of law) (citing Hurtado v. California, 110 U.S. 516, 528-529 (1884)). Indeed, 70 years ago this Court held in Van Oster v. Kansas, 272 U.S. 465 (1926), that an automobile used in crime could be forfeited notwithstanding the absence of any proof that the criminal use occurred with “knowledge or authority” of the owner. Id., at 466. A law of forfeiture without an exception for innocent owners, the Court said, “builds a secondary defense” for the State “against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner.” Id., at 467-468.

The limits on what property can be forfeited as a result of what wrongdoing - for example, what it means to “use” property in crime for purposes of forfeiture [ BENNIS v. MICHIGAN, ___ U.S. ___ (1996) , 3] law - are not clear to me. See United States v. James Daniel Good Real Property, 510 U.S. ___, ___ (1993) (slip op., at 2-5) (THOMAS, J., concurring in part and dissenting in part). Those limits, whatever they may be, become especially significant when they are the sole restrictions on the state’s ability to take property from those it merely suspects, or does not even suspect, of colluding in crime. It thus seems appropriate, where a constitutional challenge by an innocent owner is concerned, to apply those limits rather strictly, adhering to historical standards for determining whether specific property is an “instrumentality” of crime. Cf. J. W. Goldsmith, Jr.-Grant Co., supra, at 512 (describing more extreme hypothetical applications of a forfeiture law and reserving decision on the permissibility of such applications). The facts here, however, do not seem to me to be obviously distinguishable from those involved in Van Oster; and in any event, Mrs. Bennis has not asserted that the car was not an instrumentality of her husband’s crime.

[Bricker]

@rbroome

Thanks!
Though I would disagree, if I had a say in the matter, that having both money and illegal drugs in the same house proves by probable cause that the money has anything to do with the drugs. Certainly it is possible, but the house itself is undeniably there and one could argue that the ownership of the house/car/etc could be the result of illegal drugs. Since the government makes the connection between the presence of illegal drugs and property, why don’t they have to show by probable cause when that connection is not made? I understand the argument that people obtain money for drugs far more often then they obtain houses or cars, but people obtain money by legal means far more often than they obtain money by selling drugs.

It comes down to “probable”. I agree that it is possible that large amounts of money in the same location as illegal drugs implies a connection. But without some estimate of the magnitude of the probability, punishing someone by seizing their property is more than I would do.

It’s more than that, though. As I hinted above, if the man has had a modest salary throughout his life, and is in possession of over $400,000 in cash, especially if the cash is all of recent vintage, then we can make some reasonable inferences that it’s not the result of a lifetime of careful savings. So added to the drug connection, the fact that he’s got a huge amount of cash with no clear ancestry or explanation creates probable cause.

Now, again, if he has an explanation, he can rebut these inferences. If he can show he was just last week made aware of the fact that the goofy painting his grandmother gave him in 1950 was in fact an orginal Van Gogh, and the eccentric collector that identified it bought it on the spot for $400,000 in cash, then he’s good to go… and realistically, if he could produce any evidence for that kind of story, he would have done so and we wouldn’t be reading about this story now.

Probable cause arises from the totality of circumstances. It’s the set of facts that would warrant a reasonably prudent man to conclude that a crime has most likely been committed. Seriously – on these facts, do you disagree that a crime is probable? Yes, the house is there, but he can (presumably) point to his salary, credit rating, and the existence of a mortgage to account for the house. There’s no similar explanation apparent for the cash.

[Bricker]

@treis

When? As far as I can tell there was no warrant for the seizure of the money, and there has been no judicial review whatsoever.

I still don’t understand why this is the case. If I’m arrested on probable cause, I don’t have to prove my innocence to get out of jail. I get a speedy trial, at which the government must prove their case against me. I can sit there and say no words in my defense, provide no evidence, and call no witness, yet still be found not guilty. The fact that this man must prove his innocence goes against everything I know about the constitution.

Sure. Here, the government must still prove its case. As GFactor’s posts above suggest, the case is not against you; it’s against the money – a civil proceeding. The government must still prove its case to a neutral tribunal, and if it’s a federal forfeiture then the right to a jury trial remains. The goverment must only prove its case by preponderance of the evidence, rather than the more exacting beyond a reasonable doubt, but they are still required to prove it, and the owner may put up a defense, summon witnesses in his favor, and so forth, just as in any lawsuit.

If it helps, think of it as “the government is suing him” rather than “the government is prosecuting him.” Just like any civil lawsuit, if your opponent wins, they get money, but they can’t put you in jail.

[DSYoungEsq]

@treis

When? As far as I can tell there was no warrant for the seizure of the money, and there has been no judicial review whatsoever.

I still don’t understand why this is the case. If I’m arrested on probable cause, I don’t have to prove my innocence to get out of jail. I get a speedy trial, at which the government must prove their case against me. I can sit there and say no words in my defense, provide no evidence, and call no witness, yet still be found not guilty. The fact that this man must prove his innocence goes against everything I know about the constitution.

Um, you don’t know much about the Constitution, then. Not meant to be snarky, but really, I think you aren’t saying what you actually said, but rather, that you find the concept un-American in some fashion.

Even in a criminal case, if the prosecution laid out a *prima facie * case against you, sufficient to establish beyond a reasonable doubt that you had committed the crime, you would have to rebut the evidence with your own. This is the same thing. The only difference here is that there is no crime involved; as has been pointed out numerous times, this is a civil, not criminal, matter. So all the government has to do is provide sufficient evidence to establish that there is “probable cause” to believe that the money was obtained as the result of an illegal enterprise. Having done so, it becomes incumbent upon the person who claims legitimate ownership of the property to rebut the government’s case, just as he would in a criminal matter.

You point out that there is no indication of the establishment of probable cause, and it is precisely this lack that I pointed out in my post. It means that the author of the story is biased: the author hasn’t told you all the facts you need to know to reach a reasonable conclusion about what it happening here. The fact is that, either probable cause WAS established, which is why the government still has the money, or the putative owner can force a hearing to establish probable cause. I am certain that Bricker can fill you in on the likely procedures under which probable cause was, or would be, established in a case like this. But if they have reached the point where they are having to try and rebut the presumption that the money was ill-gotten, then the case has already moved past the point of probable cause determination.

Now, why is it that this is a legitimate exercise of police power? Simple. If you’ve gotten money or other property as the result of illegal activity, why should you get to keep it? If you sell drugs, and as a result own $400,000 in cash (or maybe you invested it in a nice painting), why should you be able to profit from that activity? Forfeiture laws help ensure that those who are doing illegal things can’t just suffer sometimes relatively minor consequences from the criminal justice system. As the laws of thermodynamics state: you can’t win, you can’t break even, you can’t even stay in the game.

Which isn’t to say that there isn’t some whiff of un-Americanism to forfeiture laws and their execution. Frankly, I’d modify them significantly if it were up to me; I did work for a DA in California when forfeiture was starting up as a big way to attack drug cases and I stopped working for him because too often for my taste, the things that were being done smelled like five-day-old fish. But, as Gfactor points out, that alone doesn’t make the activity unconsitutional.

[iamthewalrus_3]

@Bricker

If it helps, think of it as “the government is suing him” rather than “the government is prosecuting him.” Just like any civil lawsuit, if your opponent wins, they get money, but they can’t put you in jail.

Except that they take his money before hand. If a non-government entity sues someone, they have to actually win before they get the money, which makes a big practical difference in mounting a defense.

[Gfactor]

@iamthewalrus(:3=

Except that they take his money before hand. If a non-government entity sues someone, they have to actually win before they get the money, which makes a big practical difference in mounting a defense.

I agree this is a fundamental asymmetry, but:

1. Unless the property is seized during a lawful search (this property was), the government must establish probable cause *before * seizing the property. Obviously, that’s no help here.

2. This isn’t a breach of contract case, where a specific amount is claimed. Here the money is sought qua property. In cases where title to property is disputed, mechanisms are typically available to prevent the party in possession of the property from dissipating, encumbering, or wasting the property. An example is lis pendens, which prevents the party in possesion of real property from selling or mortgaging away someone else’s claimed interest while the dispute is being decided. Here, it’s clear that the guy wants to spend the property (money) on a lawyer. If he loses the case, the money might already be gone. In a case like that a court might well require the party in possession to post a bond, escrow the property with a third party, or deposit it with the court.