4 ms·

I find it interesting that Kagan, a former prosecutor, sees no problem with this, while Roberts, a former defense attorney, does. How many members of the SC are

by dak1 12y ago

I find it interesting that Kagan, a former prosecutor, sees no problem with this, while Roberts, a former defense attorney, does. How many members of the SC are former prosecutors, and is there any further alignment with voting? What is now required to restrict the numerous variations of civil forfeiture, considering the 4th and 6th amendments, despite their clarity, do not appear to be sufficient? Is this something that can be remedied just with normal legislation, or are we now in need of a new constitutional amendment?

spacemanmatt 12y ago
I'm of the opinion that neither legislation or a new constitutional amendment would help, at this point. When the majority on the SC endorses this sort of taking, they are the problem.
- gizmo686 12y ago
  SCOTUS never endorsed this sort of taking, they said that it is not unconstitutional and (in this case) the defendants to not have the constitutional right to challenge it. A constitutional amendment could trivially solve this (once you get it passed, which is highly nontrivial), while new legislation can solve it by either making such forfeitures (or asset freezes) illegal, or giving the defendants a legal (not constitutional) right to challenge it.
  - spacemanmatt 12y ago
    They failed to consider the rights of the accused to use their assets to choose their attorney (or pay one at all) as more important than the need of the state to preemptively foreclose the alleged artifacts of a crime. You can call it what you want, but I'm not sure we disagree, overall.
  - rasz_pl 12y ago
    they didnt say its unconstitutional to rob you, they said police doesnt violate your rights because they charge MONEY THEY STEAL with crimes ....
  - ahomescu1 12y ago
    The example in the article seems like it violates both the 4th (being "unreasonable seizure") and the 5th (people being deprived of their property without due process). The government just confiscated everything from those people, expecting a conviction that would validate the confiscation.
    - zyxley 12y ago
      Agreed. To me the explanations as to how this kind of forfeiture work just feel like absurd doublespeak to try and claim that the Fourth and Fifth somehow don't apply.
sehugg 12y ago
I'm not sure, but it might be good to remember this next time someone tries to make a political argument regarding the Supreme Court's biases.
AnthonyMouse 12y ago
> I find it interesting that Kagan, a former prosecutor, sees no problem with this, while Roberts, a former defense attorney, does. I find it interesting that a judge who is the former lawyer of one of the parties to a case would ordinary recuse herself, but apparently not when that party is the government.
mnarayan01 12y ago
As someone who thought Sotomayor would be awful on civil liberties due to being a prosecutor, it's worth noting that she's been one of the best in that regard (IMO) since joining the court. On the other hand, Kagan went straight from being a government attorney to the Supreme Court, so maybe you could expect her to be more inclined to side with the government in these cases. > Is this something that can be remedied just with normal legislation, or are we now in need of a new constitutional amendment? Legislation can certainly curb it, though it can also be repealed and bypassed if it leaves any openings.
- hyperpape 12y ago
  I might be suffering from listening to too small a sample (though they were right...), but I heard much more positive commentary about Sotomayor before she was confirmed than Kagan. It seemed like party insiders liked Kagan because she was an insider, but that was all.

by dak1 12y ago

spacemanmatt 12y ago

I'm of the opinion that neither legislation or a new constitutional amendment would help, at this point. When the majority on the SC endorses this sort of taking, they are the problem.

gizmo686 12y ago
SCOTUS never endorsed this sort of taking, they said that it is not unconstitutional and (in this case) the defendants to not have the constitutional right to challenge it. A constitutional amendment could trivially solve this (once you get it passed, which is highly nontrivial), while new legislation can solve it by either making such forfeitures (or asset freezes) illegal, or giving the defendants a legal (not constitutional) right to challenge it.
- spacemanmatt 12y ago
  They failed to consider the rights of the accused to use their assets to choose their attorney (or pay one at all) as more important than the need of the state to preemptively foreclose the alleged artifacts of a crime. You can call it what you want, but I'm not sure we disagree, overall.
- rasz_pl 12y ago
  they didnt say its unconstitutional to rob you, they said police doesnt violate your rights because they charge MONEY THEY STEAL with crimes ....
- ahomescu1 12y ago
  The example in the article seems like it violates both the 4th (being "unreasonable seizure") and the 5th (people being deprived of their property without due process). The government just confiscated everything from those people, expecting a conviction that would validate the confiscation.
  - zyxley 12y ago
    Agreed. To me the explanations as to how this kind of forfeiture work just feel like absurd doublespeak to try and claim that the Fourth and Fifth somehow don't apply.

sehugg 12y ago

I'm not sure, but it might be good to remember this next time someone tries to make a political argument regarding the Supreme Court's biases.

AnthonyMouse 12y ago

> I find it interesting that Kagan, a former prosecutor, sees no problem with this, while Roberts, a former defense attorney, does. I find it interesting that a judge who is the former lawyer of one of the parties to a case would ordinary recuse herself, but apparently not when that party is the government.

mnarayan01 12y ago

As someone who thought Sotomayor would be awful on civil liberties due to being a prosecutor, it's worth noting that she's been one of the best in that regard (IMO) since joining the court. On the other hand, Kagan went straight from being a government attorney to the Supreme Court, so maybe you could expect her to be more inclined to side with the government in these cases. > Is this something that can be remedied just with normal legislation, or are we now in need of a new constitutional amendment? Legislation can certainly curb it, though it can also be repealed and bypassed if it leaves any openings.

hyperpape 12y ago
I might be suffering from listening to too small a sample (though they were right...), but I heard much more positive commentary about Sotomayor before she was confirmed than Kagan. It seemed like party insiders liked Kagan because she was an insider, but that was all.