The Supreme Court has recognized there’s something definitely wrong with asset forfeiture. But, so far, it has yet to attempt to put a full stop to it.
A recent case dealt with criminal asset forfeiture. In that case, the nation’s top court ruled it was unconstitutional for the government to seize assets worth far more than the maximum fine it could levy for the criminal charges accompanying the seizure. In that case, cops took a $42,000 Range Rover in exchange for a sale of $260 worth of heroin to an undercover officer. Given that this crime had a max fine of $10,000, the Supreme Court said taking the Range Rover was an “excessive fine” — something that violates the Eighth and Fourteenth Amendments.
But the justices said this also applied to civil asset forfeiture. And in civil cases, criminal charges usually aren’t filed, which means any forfeiture would be an “excessive fine” because the applicable fine in cases with no criminal charges is always going to be… $0.
Unfortunately, the 2019 ruling changed little about forfeiture programs. Most still operate the way they always have and will likely continue to do so until another legal challenge reaches the upper levels of the court system.
This case did manage to make it to the top court in the land. But there’s no win to be had here for people whose property is taken by opportunistic cops who operate in locales with permissive forfeiture laws. Here are the facts of the case, as reported by Adam Liptak for the New York Times.
The court ruled in two cases. One of them started after Halima Culley bought a 2015 Nissan Altima for her son to use at college. He was pulled over by the police in 2019 and arrested when they found marijuana. They also seized Ms. Culley’s car.
That same year, Lena Sutton lent her 2012 Chevrolet Sonic to a friend. He was stopped for speeding and arrested after the police found methamphetamine. Ms. Sutton’s car was also seized.
Alabama law in effect at the time let so-called innocent owners reclaim seized property, and both women ultimately persuaded judges to return their cars. It took more than a year in each case, though there was some dispute about whether the women could have done more to hasten the process.
Ms. Culley and Ms. Sutton filed class actions in federal court saying that they should have been afforded prompt interim hearings to argue for the return of the vehicles while their cases moved forward. Lower courts ruled against them.
And so has the Supreme Court. As the decision [PDF] notes (with some apparent regret), due process rights do not include forcing law enforcement to engage in timely adjudication of forfeiture cases, which means agencies and officers can continue to hang back and hope attrition (for lack of a better word) will allow them to retain control of property seized for seriously specious reasons.
The Court’s decisions in $8,850 and Von Neumann make crystal clear that due process does not require a separate preliminary hearing to determine whether seized personal property may be retained pending the ultimate forfeiture hearing.
In other words, the government is under no obligation to provide forfeiture victims with a preliminary hearing to see whether or not the government can retain control of the property until the forfeiture is adjudicated. People whose property has been seized will just have to wait until the government makes its move and respond to them.
This might seem fair, but it really isn’t. In cases like these — where people’s cars have been seized because of crimes committed by people who don’t own the cars — the owners are still obligated to make payments on these cars or round up the funds to secure other transportation while the government goes through the civil forfeiture motions. This could take weeks, months, or years. At no point is the government required to accelerate the process or allow property owners an opportunity to make things move faster.
So, the ruling was no help to these women or to anyone else subjected to the same tactics. Some justices did have some good stuff to say about the general shittiness of civil asset forfeiture programs, but those were relegated to the dissent, where they similarly won’t do much for people victimized by legalized theft.
But even the concurrence (this one written by Justices Gorsuch and Thomas) has things to say about civil asset forfeiture, most of it critical of the practice.
To secure a criminal penalty like a fine, disgorgement of illegal profits, or restitution, the government must comply with strict procedural rules and prove the defendant’s guilt beyond a reasonable doubt. In civil forfeiture, however, the government can simply take the property and later proceed to court to earn the right to keep it under a far more forgiving burden of proof. In part thanks to this asymmetry, civil forfeiture has become a booming business. In 2018, federal forfeitures alone brought in $2.5 billion. Meanwhile, according to some reports, these days “up to 80% of civil forfeitures are not accompanied by a criminal conviction.”
[…]
Not only do law enforcement agencies have strong financial incentives to pursue forfeitures, those incentives also appear to influence how they conduct them. Some agencies, for example, reportedly place special emphasis on seizing low-value items and relatively small amounts of cash, hopeful their actions won’t be contested because the cost of litigating to retrieve the property may cost more than the value of the property itself. Other agencies seem to prioritize seizures they can monetize rather than those they cannot, posing for example as drug dealers rather than buyers so they can seize the buyer’s cash rather than illicit drugs that hold no value for law enforcement.
Delay can work to these agencies’ advantage as well. See Brief for Institute for Justice et al. as Amici Curiae 16. Faced with the prospect of waiting months or years to secure the return of a car or some other valuable piece of property they need to work and live, even innocent owners sometimes “settle” by “paying a fee to get it back.”
That’s from the concurrence. That’s from two justices who agree the Constitution provides no remedy but still spend most of their concurrence criticizing civil forfeiture.
The dissent, written by Justices Sotomayor, Kagan, and Jackson, is even more harsh in its assessment of civil forfeiture. And they say this decision — while ultimately critical of the practice — gives opportunistic law enforcement agencies all the permission they need to keep doing things the way they’ve always done them while making it clear members of the public are welcome to go fuck themselves if they have a problem with this.
Petitioners claim that the Due Process Clause requires a prompt, post-seizure opportunity for innocent car owners to argue to a judge why they should retain their cars pending that final forfeiture determination. When an officer has a financial incentive to hold onto a car and an owner pleads innocence, they argue, a retention hearing at least ensures that the officer has probable cause to connect the owner and the car to a crime.
Today, the Court holds that the Due Process Clause never requires that minimal safeguard. In doing so, it sweeps far more broadly than the narrow question presented and hamstrings lower courts from addressing myriad abuses of the civil forfeiture system.
Not a great result. Hamstringing lower courts is the least favorable outcome, especially now that lower courts seem to finally be waking up to the harms created by civil forfeiture programs — nearly all of which contain multiple layers of perverted incentives. With this decision, the Supreme Court has taken a pass on establishing a right to a speedy trial (of sorts) for those who’ve just seen their possessions taken by law enforcement because of the actions of others. This decision says things are fine the way they are, even when five justices (even those concurring!) agree the system is completely fucked.
