Civil asset forfeiture laws have been a source of controversy for decades. Now, it appears the implementation of these laws have drawn the ire of at least one Supreme Court Justice. In a recent ruling, Supreme Court Justice Clarence Thomas has expressed skepticism of the current implementation of asset forfeiture laws.
The Supreme Court denied Lisa Leonard’s request to hear her appeal case regarding the outcome of Leonard v. Texas due to procedural reasons. While Clarence Thomas agreed with the Supreme Court’s decision to deny the request, he had sharp criticism for current civil forfeiture practices.
On April 1, 2013, James Leonard and Nicosa Kane were stopped by a Texas police officer for a traffic infraction. After searching the vehicle, the officer discovered a safe in the trunk. The contents of the safe included $201,100 and a bill of sale for a home. Neither Leonard nor Kane were charged with a crime, but the authorities seized the money because they believed it was connected to criminal activities.
Lisa Leonard, James’ mother claimed that she was the lawful owner of the money from the sale of the house. She filed a lawsuit against the government in an effort to regain her funds. Since Leonard did not address her claims at the trial level, the Supreme Court denied her request to hear her case. As a result, it is highly likely that Ms. Leonard will lose her money.
Lisa and James Leonard lost their money because they were on the wrong side of civil asset forfeiture laws. These laws allow police to confiscate money or property if they believe these items have been used in a crime. They are able to keep these items regardless of whether or not the persons involved were ever charged with, or convicted of a crime. Typically, the person whose property has been confiscated is required to go through a complicated and lengthy process in order to regain their property. In many cases, they are unsuccessful.
Unfortunately, the situation with Lisa and James Leonard is not an isolated incident. Civil forfeiture laws have enabled police forces to seize funds from numerous innocent parties. Ewan Wyatt, in a piece for the National Review writes:
Americans have a right to presumed innocence, making the idea of the government’s seizing property without due process incompatible with the Constitution and our founding principles. However, this has not stopped law enforcement from commonly using the practice — known as civil asset forfeiture — to seize property they have “probable cause” to believe was involved in criminal activity.
Because this is a civil procedure, the government doesn’t have to establish guilt before seizing the property in question. If the owner wants to reclaim it, he or she must prove to the government that it has no connection to criminal activity. This turns the concept of “innocent until proven guilty” on its head.
It is not clear how many seizures are performed by law enforcement, but we can find out how much money is being taken. In piece for the Washington Post, Christopher Ingraham writes:
The government does not measure the number of times per year that assets are seized. But one common measure of the practice is the amount of money in the asset forfeiture funds of the Department of Justice and the U.S. Treasury, the two agencies that typically perform forfeitures at the federal level. In 2008, there were less than $1.5 billion in the combined asset forfeiture funds of the Justice Department and the U.S. Treasury, according to the report. But by 2014, that number had tripled, to roughly $4.5 billion.
People who support civil forfeiture laws argue that these practices help the authorities fight crime by taking the resources from criminals. Instead of the money funding illegal activities, it is used to help law enforcement. However, while these laws may have originally been intended for a good purpose, it seems that they are currently being used by law enforcement to generate revenue.
There are several different instances where the use of forfeiture laws have been questionable. The Heritage Foundation’s John Malcolm discusses some of these incidents:
In Tennessee, a local news investigation revealed that drug task force officers were 10 times more likely to patrol the westbound lanes of I-40 than the eastbound lanes. Why? Because it was known that illegal drugs from Mexico were transported into Nashville on the eastbound road, but the couriers would return with the proceeds on the westbound road. Rather than arrest the drivers, officers often have them sign a waiver to the funds on the side of the road and then let them go.
The same thing happened and may still happen in Volusia County, Florida, where authorities routinely stop motorists heading south on I-95 and seize amounts of cash in excess of $100 on suspicion that it is going to be used to buy drugs. Authorities in that county have seized over $8 million, and 90 percent of the people stopped were minorities.
In Tenaha, Texas, which is between the Mexican border and Houston, police executed well over a hundred pretextual traffic stops of cars heading south on U.S. 59. Officers seized cash and valuables from the passengers, frequently threatening to charge them with crimes (even though no drugs were found) or to turn over any children in the car to protective services unless they signed away their rights to the cash. The town eventually settled a lawsuit filed by the American Civil Liberties Union and instituted several policy changes, including videotaping all traffic stops and banning the use of roadside waivers.
Stories such as these should be troubling to those who value liberty for a myriad of reasons. In some of these cases, law enforcement clearly abused the authority given to them by civil forfeiture laws.
Civil asset forfeiture is practiced at the state and federal level. Some of the federal agencies who participate in forfeiture programs include:
- Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
- Federal Bureau of Investigation (FBI)
- Postal Inspection Service
- Internal Revenue Service (IRS)
- Drug Enforcement Administration (DEA)
- Immigration and Customs Enforcement (ICE)
Many who support forfeiture laws argue that the practice has been carried out since the founding of the United States. However, the way the law was implemented back then is far different from current practices. In writing his opinion, Clarence Thomas addresses this issue as well as several others:
First, historical forfeiture laws were narrower in most respects than modern ones. 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. These laws were also narrower with respect to the type of property they encompassed…
Second, it is unclear whether courts historically permitted actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof.
Third, unlike a criminal case in which a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, in a civil forfeiture case, the prosecutor only needs to establish the basis for the forfeiture by a preponderance of the evidence. Defenders of current civil asset forfeiture procedures note that preponderance of the evidence is the standard of proof that is traditionally used in civil cases. While a true statement, this does not mean that it is the appropriate standard to use in civil asset forfeiture cases given the clear connection between this type of action and a typical criminal case.
Fourth, also unlike a criminal case in which the prosecutor must prove that the person who used or derived the property acted intentionally or at least was willfully blind to its misuse, in a civil case, the government does not have to prove any of that. Rather, the burden is placed on the “innocent owner” to prove a negative: that he did not know about its illegal use and that, if he did know about it, he did all that could reasonably be expected under the circumstances to terminate such use.
Cases involving civil forfeiture rarely end with the person regaining their money or property. The system is set up in a way that makes it difficult for the average person to navigate it. The person is not entitled to legal representation since it is considered a civil matter rather than a criminal matter. The forfeitures are usually for amounts that are too small to justify hiring legal representation. Additionally, these cases can take months or years to resolve.
According to the Cato Institute, 84% of Americans are against civil asset forfeiture laws. Clarence Thomas appears to agree with them. Hopefully Thomas’ criticism of these laws will cause those in power to reevaluate the ways these laws are implemented.
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