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The Constitutionality of Civil Forfeiture (2016)
- dataangel 4y agodidn't it already get ruled unconstitutional?
- wahern 4y agoNo. 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 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 4y agoIt 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?
- s5300 4y agoI think it’s a bit less nefarious than that & mostly just another way to fuck over minorities & make them submissive to authority. It isn’t too often you hear about joe average white guy getting held up in a civil forfeiture dispute. Completely innocent aside from not being white on the other hand, it comes to light every now & then. Without trying to incite a political flame war in these comments - you don’t really hear about the US Republican Party of personal freedoms & ability to shoot & kill anybody who steals from you trying to overturn civil forfeiture.
- ncmncm 4y agoRight, they don't expect to have it done to them.
- pyuser583 4y agoYou’re very close - it’s started in maritime law. The idea was if the captain of a ship had committed a crime, or incurred a fine, and then skipped town, you could seize the ship.
- kingcharles 4y agoTimbs 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 4y agoThis, along with the private prison systems, creates perverse incentives in criminal justice.
- rayiner 4y agoIt 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-prisons-united-states 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.
- fredophile 4y agoRikers 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.
- jhgb 4y agoFor someone from Europe...what's the exact difference?
- rendall 4y agoA prison is usually run by the government. A private prison is run by a corporation hired by the government; payment is usually prisoner * time. It's understood that the incentive for the private prison is to spend as little on the prisoners as possible, because the rest is profit; although I understand some contracts regulate this.
- jhgb 4y agoI meant prison vs. jail. It seems mildly blurry to me considering that in my country we do have some distinctions between different types of detainment facilities but from what I grasped, the distinctions are delineated somewhat differently in the US that they are around here.
- jstx1 4y agoThis is on the long list of reasons why the US sometimes seems to be hostile to its own citizens.
- giraffe_lady 4y agoSometimes? The US is and always has been hostile to some of its citizens.
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- Maursault 4y agoThat's lot of reaching around to dilute and negate the 4th, 5th and 14th Amendments.
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- voakbasda 4y agoAll 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_Warning_to_a_Young_Patriot https://en.wikipedia.org/wiki/The_End_of_America:_Letter_of_...
- sudden_dystopia 4y ago
- a1369209993 4y ago> Yea I know, there are good people that are lawyers. As the saying goes, ninety percent of lawyers give the rest a bad name.
- stevespang 4y ago
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- RcouF1uZ4gsC 4y agoAlthough 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 4y 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 4y agoImporting 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.
- phkahler 4y 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.
- SnowHill9902 4y agoThat’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-v 4y agoExcept for all the cases when they obviously are, making the whole process a blatant end run around the fourth amendment.
- oh_sigh 4y agoThat 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.
- SnowHill9902 4y agoI’m just explaining the rationale. At this point it’s a moral discussion rather than legal: does the “war on drugs” et al trump individual rights? If yes, you’d be in favor of forfeiture, if not, you’d be against.
- crooked-v 4y agoExcept it's not really a moral discussion, it's a legal one—and the most fundamental laws of the country obviously ban the tactic. The article uses a lot of sophistry to try and argue that the plain and obvious intended reading of the Fourth Amendment isn't correct, and that's obviously nonsense, both in a vacuum and in the context of when and why it was written.
- hitovst 4y agoWe are occupied. All who are complicit can never allow us to become a lawful society.
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- Terry_Roll 4y agoI'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 4y ago(2016)
- stevespang 4y ago
- jmyeet 4y agoWe 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 https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford [2]: https://en.wikipedia.org/wiki/Colfax_massacre https://en.wikipedia.org/wiki/Colfax_massacre [3]: https://en.wikipedia.org/wiki/United_States_v._Cruikshank https://en.wikipedia.org/wiki/United_States_v._Cruikshank [4]: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000200002 http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S... [5]: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller
- ratsmack 4y agoCivil 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 4y agoIndeed. 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.
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- giantg2 4y agoCivil law in general goes against constitutional protections. Most rights one has in a criminal case don't exist in the civil side.
- butlerm 4y agoThere 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 4y agoThis is what passes as legal scholarship these days thanks to the Federalist Society.
- CWuestefeld 4y agoThe article has no reference at all to the Federalist Society. Where do you see a connection?
- tomohawk 4y agoThanks to Yale.
- FpUser 4y agoI 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,
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- whatshisface 4y agoYou might not care whether it is constitutional, but the law sure does.
- giantg2 4y agoOh please, the people in power in the system ("the law") don't care because it'll never affect them.
- FpUser 4y agoLaw can declare that the Earth is flat. Does not mean I have to believe in it.
- cnlevy 4y agoAnd they'll confiscate the earth because it transgressed the law by being round.
- denton-scratch 4y agoInteresting; is there a law that dictates that the Earth is an oblate spheroid? A bit like the Indiana Pi Bill?
- unclenoriega 4y agoThe fact that the practice exists would seem to argue against that.
- giantg2 4y agoCivil 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.
- deleted 4y ago[deleted]
- voakbasda 4y agoA 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 4y agoI 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 4y agoThe 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 4y agoThe 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.
- giantg2 4y agoIt's probably that it doesn't affect most people personally so they don't care, or they have bigger priorities. The legislators don't see it as a big enough issue to act on since it won't win many political points for them.
- throwaway0a5e 4y agoIt'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.