The Constitutionality of Civil Forfeiture (2016)

https://www.yalelawjournal.org/feature/the-constitutionality-of-civil-forfeiture

by luu • 4 years ago

105 100 4 years ago

dataangel• 4 years ago

didn't it already get ruled unconstitutional?

wahern• 4 years ago

No. I believe the most recent high-profile case merely established that state civil forfeitures were subject to the 8th Amendment prohibition on excessive fines: https://en.wikipedia.org/wiki/Timbs_v._Indiana

It's unlikely it would ever be declared unconstitutional. More likely (but still not very) courts will eat around the edges, minimizing the ability of law enforcement to use asset forfeitures as a substitute for proper criminal prosecution. (Note that in the Timbs case he was simultaneously criminally prosecuted, and (IIRC) it was undisputed his vehicle was used in the commission of a crime. Depending on how you look at it, this context could bode well or bode poorly for future judicial reform.) Much more likely still is legislatures passing laws to reign in law enforcement use of civil forfeiture. Still a very long way to go, though.

lumost• 4 years ago

It occurred to me that civil forfeiture in the US may have been an attempt to regulate highway robbery. The US traditionally had giant swaths of lightly populated territory between population centers. Most other regions of the world with similar dynamics have struggled with lawmen or other highwaymen illegally confiscating property in such situations.

Did we simply make highway robbery legal if it’s done with a badge?

kingcharles3• 4 years ago

Timbs v. Indiana is a great case. I've seen too many civil forfeitures where someone lost their brand new $60,000 car because they got some sort of minor traffic infraction.

In theory, Timbs has limited that.

I've not seen it used much in practice yet, but most state and local governments are seriously winding down their civil forfeiture practices anyway due to the changing tide of public opinion from abuse.

dkackman11• 4 years ago

This, along with the private prison systems, creates perverse incentives in criminal justice.

rayiner4• 4 years ago

It should be noted that the DOJ started phasing out private prisons last year, and most states don't have any significant number of people in private prisons: https://www.sentencingproject.org/publications/private-priso.... Additionally, the prisons folks tend to hear about in terms of abuses, like Rikers in NY, are good old public prisons.

ncmncm5• 4 years ago

Private prisons are good at silencing prisoners.

tehwebguy3• 4 years ago

I believe the timeline is that Obama started phasing them out, Trump halted that, and then Biden started phasing them out again. Good reminder that executive action isn’t worth the paper it’s written on either way.

(Perhaps most importantly, most private prisons are not federal)

fredophile• 4 years ago

Rikers is a jail, not a prison. It might seem like I'm being pedantic but when you're talking about problems in the criminal justice system it's important to recognize the difference between the two and how the problems and solutions may be different.

badrabbit3• 4 years ago

In Justice period. The victims often have no relation to crime or criminal prosecution.

It's not a bug, it's a feature. The system is working as intended. It is no accident that the US has #1 incarceration rate on the planet. A significant portion of the population and and even higher portion of those in government believe manipulation and control of certain groups in the population is more important than any notion of justice or law an order. Their love for their country pales in comparison to their hatred and greed.

Hnrobert422• 4 years ago

The victims often have no relation to crime or criminal prosecution.

What does this mean?

MisterBastahrd• 4 years ago

When they outlawed general slavery, they specifically enshrined the type of slavery taking place at state penns every day.

kingcharles3• 4 years ago

As a current prisoner, one of the nice things about private prisons is that they are so thirsty for profit that a lot of them bypass all the asinine rules about security that government prisons have in order to sell you anything and everything, e.g. games consoles, steel-stringed guitars, etc.

So, while you are more likely to come to grief in a private prison due to them under-spending on guards, health care, physical plant, etc, you will die in luxury as long as your family have money to send you.

FireBeyond3• 4 years ago

And let's not forget the plea bargain. Very few other places use it, and those that do, use it a very tiny fraction of what the US does.

giantg25• 4 years ago

Please bargains themselves aren't terrible. They're only bad because the trial wait times and bail conditions are so bad that innocent people are accepting a plea bargains. If the rest of the system was fair, like with reasonable bond and not waiting years for a trial, then it could still be a valid tool. I won't hold my breath though.

jstx1• 4 years ago

This is on the long list of reasons why the US sometimes seems to be hostile to its own citizens.

giraffe_lady• 4 years ago

Sometimes? The US is and always has been hostile to some of its citizens.

Maursault• 4 years ago

That's lot of reaching around to dilute and negate the 4th, 5th and 14th Amendments.

voakbasda2• 4 years ago

All of our rights are under attack. “The End of America” by Naomi Wolf [0] provides a compelling outline of how this has unfolded, and the situation has only gotten worse since its publication.

[0] https://en.wikipedia.org/wiki/The_End_of_America:_Letter_of_...

RcouF1uZ4gsC• 4 years ago

Although I am not a lawyer, One weakness I see in this analysis is that it is taking as precedent things enforced mainly extra-territorially (smuggling) and using it to justify actions that have been mainly enforced domestically (civil forfeiture).

I personally would have a lot less problem with civil forfeiture if it were mainly something enforced at the borders. If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling.

I do have a bunch of issues if someone is driving along in the US, gets pulled over and then gets his car confiscated.

The Constitution and Jurisprudence has made a distinction between actions performed extra-territorially and domestically.

This analysis ignores that distinction and as such IMO does not establish that civil forfeiture as practiced currently is constitutional.

EDIT:

One example of this distinction is piracy. When America was first founded, pirates captured on the high seas were often summarily executed. However, the practice could not be used to justify the police doing that domestically.

RHSeeger• 4 years ago

If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling.

But in this case, the person could be arrested and it should be (is?) possible to confiscate the possessions they have on them. But the confiscation should be "against the person", not the object. And if the judicial system can't prove the person was guilty of a crime, and that those possessions were involved, then they should need to return them.

The way things currently work, that same person could be coming across the border with $20,000 in cash on them. The police see it and decide it _must_ be crime related because "who would carry that kind of money on them for any other reason" and confiscate the money... all without actually charging the person with a crime.

And that's bad. And the fact that it's a border issue is irrelevant. At most, the border officers should be saying "we're not comfortable with you bringing that much money over the border in cash, you are denied entry", and sending them back along their way.

ravel-bar-foo• 4 years ago

Importing cash has other limitations, so your $20,000 example is a poor one. Specifically, imports of financial instruments of $10,000 or more must be declared, following anti-money-laundering laws.

whatshisface2• 4 years ago

I think you've hit on the most significant objection to this analysis. The paper even distinguishes between cases decided by the admiralty and "at law," then discards that distinction to push the idea that forfeiture inside of clearly demarcated judicial jurisdictions has precedent.

AdrianB1• 4 years ago

The smuggler with the car confiscated is a criminal case, not civil forfeiture. The problem is the civil forfeiture with no case.

mellavora• 4 years ago

mainly something enforced at the borders

Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary."

Roughly two-thirds of the United States' population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That's about 200 million people.

Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area.

Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose.

https://www.aclu.org/other/constitution-100-mile-border-zone

chrismcb2• 4 years ago

There is a huge difference between confiscating a bunch of cocaine and confiscating a car. But I do agree that crossing a border is different than not crossing a border (and should be different than simplyb being within 90 miles of the border)

phkahler2• 4 years ago

> and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

This is a hit piece on the constitution. The secure in our possessions language is plain and simple. To pretend those protections are more nuanced is disingenuos.

SnowHill99024• 4 years ago

That’s because forfeiture is a civil claim against assets not a criminal procedure against a defendant. It’s argued that those assets were not the defendant’s to begin with.

crooked-v2• 4 years ago

Except for all the cases when they obviously are, making the whole process a blatant end run around the fourth amendment.

oh_sigh2• 4 years ago

That would be fine with me if the onus was on the government to prove the assets weren't legally acquired. Now it is up to the person to prove the assets were legally acquired.

ncmncm5• 4 years ago

A thief can always explain why he was perfectly justified in stealing.

bcrosby95• 4 years ago

Its basis is in abandoned property that was likely illegally obtained, where they can't find an owner. Such as a ship in a harbor full of illegally imported goods.

It's been stretched to include having $2k in cash in your car while driving.

chmod600• 4 years ago

In a civil suit, you don't get the assets until you win (and maybe not even then).

Here, the government takes them by force immediately, and you have to fight for them back. Not the same thing.

kingcharles3• 4 years ago

No, "in rem" civil forfeiture says that the items are a guilty party in the criminal action. It is no different to putting a person in pretrial detention until their case reaches trial.

phkahler2• 4 years ago

> That’s because forfeiture is a civil claim against assets not a criminal procedure against a defendant.

The constitution makes no distinction between criminal or civil here. It makes a blanket statement that the government won't take your stuff.

hitovst• 4 years ago

We are occupied. All who are complicit can never allow us to become a lawful society.

Terry_Roll• 4 years ago

I'm surprised people still fall for a legal dictatorship masquerading as a democracy that has the audacity to not even teach a TL;DR of law in school to everyone and give periodic updates to the public ensuring all have seen and _agreed_ to the legal dictatorship!

What about the taxation dictatorship? The beauty of institutional dictatorships like Law, Finance & Medicine is they dont die unlike people. Your enemies are the people who control these institutions.

At least the human dictator's like Pinochet, Saddam Hussein, Hitler, Stalin, Franco, and others didnt attempt to hide their existence and their cruelty unlike the institutional dictatorships who pass the buck to another entity if they cant lay the blame on your failings whilst not recognising their own failings!

Trump was more intelligent than most realise when he called for a protest outside the Capitol Building. These faceless individuals who control your life in return for monkey tokens are your real enemies because they control so many people's lives and they only allow you to change the diversionary puppets aka politicians every few years.

When people wise up to whats going on, it always ultimately boils down to the most violent win, with that in mind, be mindful we could all be sleepwalking into another world war to make everyone humble to the puppeteers.

trevcanhuman• 4 years ago

(2016)

jmyeet• 4 years ago

We like to paint a picture of the Supreme Court as being nine impartial giant intellects of law that hand down rulings after careful unbiased consideration.

This is a myth. The Supreme Court is and always has been political. There are "textualists". That's propaganda. There are many examples of this. Take the infamous Dread Scott [1] decision:

... the Court held that the United States Constitution was not meant to include American citizenship for people of African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.

A less well-known example is the Colfax massacre [2]:

L An estimated 62-153 black militia men were killed while surrendering to a mob of former Confederate soldiers and members of the Ku Klux Klan.

In United States v. Cruikshank [3] the Supreme Court[4]:

... overturned all three convictions on the basis that the indictments were vague and general and had not specified that the victims were deprived of their constitutional rights on the basis of their race or colour.

This is just as stark in interpretation of the Second Amendment. Even though the Amendment was created to give the states the right to form a militia in the event of a slave rebellion (the Southern States were concerned the Federal government wouldn't come to their aid) this went through massive reinterpretation in the 20th century and was ultimate recognized as an individual right in 2008 [5] despite the words "well-regulated milita".

Civil forfeiture is an abomination. The Supreme Court if indeed it was lofty and apolitical would've struck it down long ago as a clear Fourth Amendment violation but they haven't. The construction of forfeiture as a civil procedure for criminal proceeds is tortuous logic at best, right up there with the Court not striking down Texas's SB8 despite it's novel end-run against standing by excluding government officials (which, if upheld, would allow any cosnitutional protection to be bypassed).

Civil forfeiture is nothing more than the continuing echoes of a country founded on white supremacy and the horrors of chattel slavery. It is state violence and the illegal seizure of the assets of the predominantly poor and further evidence that we've never had and never more desperately needed a reckoning with our racist past and present.

[1] https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

[2] https://en.wikipedia.org/wiki/Colfax_massacre

[3] https://en.wikipedia.org/wiki/United_States_v._Cruikshank

[4] http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S...

[5] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

ciphol• 4 years ago

It used to be that the political Supreme Court justices were confirmed with bipartisan approval. This meant that the court's decisions generally fell within the national consensus and the judges received national respect.

Now, we have a new phenomenon where every justice is confirmed by an approximately 51-49 party line vote. And moreover, because the Senate is highly weighted towards one party (as small rural states get the same vote as big urban states), the politics of the Supreme Court are quickly becoming very different from the politics of the nation.

I suspect the new state of affairs - where 5 or 6 unelected politicians-for-life who aren't respected by most voters create laws that most voters disagree with - is unsustainable.

ratsmack• 4 years ago

Civil Forfeiture goes directly against Constitutional rights and protections. This article makes ridiculous excuses for the practice and in my opinion, the article is disregarded without consideration.

vesinisa• 4 years ago

Indeed. By common sense, civil forfeiture as it de facto occurs today is a clear violation of fundamental human rights. If an argument can be made that the process is compliant with some document supposedly enumerating fundamental rights of a person - such as the US constitution - either the argument or the document is flawed.

giantg25• 4 years ago

Civil law in general goes against constitutional protections. Most rights one has in a criminal case don't exist in the civil side.

butlerm• 4 years ago

There is nothing civil about civil asset forfeiture. It is straight up robbery, about the most uncivil government action you can imagine short of rounding suspects up and shooting them.

equivocates• 4 years ago

This is what passes as legal scholarship these days thanks to the Federalist Society.

CWuestefeld• 4 years ago

The article has no reference at all to the Federalist Society. Where do you see a connection?

tomohawk• 4 years ago

Thanks to Yale.

FpUser2• 4 years ago

I did not read the article and do not care whether civil forfeiture is constitutional. It is in my eyes one of the most disgusting things government does to its constituents and has no place in any civilized country. It is a crime. If constitution allows it then the constitution got to be fixed,

whatshisface2• 4 years ago

You might not care whether it is constitutional, but the law sure does.

giantg25• 4 years ago

Oh please, the people in power in the system ("the law") don't care because it'll never affect them.

FpUser2• 4 years ago

Law can declare that the Earth is flat. Does not mean I have to believe in it.

unclenoriega• 4 years ago

The fact that the practice exists would seem to argue against that.

giantg25• 4 years ago

Civil law is being increasingly used to avoid rights. Right to a lawyer, right to proof beyond a reasonable doubt, right to be present at your hearing, etc. We see it with this, we see it with red flag laws, we see it with the abused of restraining orders in divorces.

If they can't get it done in criminal court because rights get in the way, then they just create a civil path for it.

voakbasda2• 4 years ago

A great example of this circumvention is Texas permitting civil cases to target individuals that get abortions, because their criminal laws got stomped as unconstitutional.

RajT88• 4 years ago

I have to ask on this issue:

Who is in favor of civil asset forfeiture and what is their politics?

When John Oliver airs an episode about it, and Breitbart publishes an oped against it quoting Rand Paul, you can bank on the American public being against it.

klyrs• 4 years ago

The justice system. The unelected police, who profit directly, and the unelected prosecutors and judges who have intimately friendly relationships with those police. When police get a whiff that action could be taken against this funding source, they threaten to drag the politicians as anti-police, threaten stop-work actions, etc. It isn't about what the people want. We live in a police state.

x86_64Ubuntu• 4 years ago

The laws in the US are made by the legislature. If it was as widely opposed as some people believe, it would be done with. The problem is that law-and-order types are always going to side with law enforcement, especially when it concerns them having more power.

throwaway0a5e• 4 years ago

It's one of those things where nobody will go on record supporting it in abstract but both sides will generally turn a blind eye to it being done to people they don't like.

The Constitutionality of Civil Forfeiture (2016)

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