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Timbs v. Indiana: A First, Tentative Step Towards the Elimination of Civil Asset Forfeiture?
SCOTUS today announced its decision in Timbs v. Indiana. It is good, but not great news. All nine justices agreed that the prohibition on excessive fines found in the Eighth Amendment applied to state civil forfeiture actions. The unanimity is particularly nice to see and the result is a step in the right direction. Gorsuch and Thomas wrote separately to make the true — but at this time, pedantic — point that the privileges and immunities clause of the 14th Amendment rather than the oxymoronic “substantive due process” doctrine should be the vehicle for incorporation.
The case stopped short, however, of banning civil asset forfeitures. It remanded for further proceedings — presumably on the question of the excessiveness of the forfeiture involved in the case.
I had hoped for a more expansive opinion that would put an end to the constitutionally loathsome practice of confiscating the property of citizens without obtaining a criminal conviction to justify the confiscation. But it appears that the Roberts Court will continue to take small steps, deciding no more than necessary to decide the issues presented to it. At least that’s what it did here.
Nothing in any of the opinions that I can find sheds any light on whether civil asset forfeiture is long for this world or not, though I am hopeful that at least some of the justices see this as a stepping stone to resolving that question in favor of the victims of the noxious practice.
Published in General
Glad to hear there’s at least some life in incorporation through P&I Clause.
This was the best news of the day so far. A good first step in developing a limiting principle. Good news. And this unamious opinion was authored by RBG, not unlike, when Rehnquist authored an opinion that confirmed a long held point of view, such as Miranda warnings.
Main Feed.
In conservative legal circles and academia it’s a much discussed subject. And they certainly have a point. It’s just that P&I has been read out of the constitution for so long, and mostly replaced with a doctrine that serves the same function even if it’s linguistically tortured, that the argument over it seems pedantic to me.
A little bit of an originalist* replies.
Why? If the reason is based on the original meaning of the text of the Constitution at the time of the event, then this is good news to any originalist. Without reading the decision I’d guess it depends on the amendment (I think it was an amendment, anyway) extending certain Constitutional protections against Federal action to protection against the same actions by the States.
The point isn’t pedantic. That doctrine is the more powerful of the two that the anti-Constitutional movement established in the 1960s to begin the current phase of their offensive. If Gorsuch and Thomas succeed some day in taking it away, much of the progressivist assault on the rule of law collapses.
Me too. Unless there is some Constitutional argument for these forfeitures. I can’t think of one, but I probably won’t be asked.
Whatever works.
Me too.
*Disclaimer: Everything I say above is based on things I learned within the last two weeks, in a book I’ve not even finished. I mention it because I’ve long remembered a little bit of a famous quote, the one that starts, “A little bit of knowledge is a dangerous thing…”. If that bit is even a little bit true, then my knowledge of constitutional law is at least a little bit dangerous.
The book’s called “Scalia Speaks”. It’s more than good. It’ll bowl you over, no matter the direction whence you are vulnerable to over-bowling.
Is that the one that was written by his son?
And a few other points:
Yep.
So the question is merely, “is the amount excessive?”
I was thinking it was around the idea of asset forfeiture, per se
Thanks! I picked up on the distinction but I misunderstood what that distinction was being applied to. I was puzzled by the word “incorporation” but decided not to ask what it meant. And that turns out to be the key to the whole thing!
I’d rather you give me too many more constitutional and Scalia things to learn than too few. Not irregardless, (or “Regardless”, as they say) you did give me too many. I hope he talks about this clause in the rest of the book but I think he has focused on other horrors, so far.
Going up to the top, yes the case was remanded. The Court did not hold that civil asset forfeiture was per se unconstitutional. I held out a little hope they might, but they didn’t. They didn’t address the per se question at all (none of the opinions). So on remand I think yes, the question is going to be whether the forfeiture is “too large” or not.
Scalia Speaks was great. It’s a collection of Scalia’s speeches. His son was more of an editor than a writer, though he had to do more serious editing on some of them.
Like Tolkien’s son, actually, and the two sons coincidentally share the same name. Or perhaps not coincidentally, as the name means carrier (or bearer) of Christ.
Cato:
I agree with you that this is good news, and thanks for the tip.
I find Gorsuch’s concurrence of more significance than you appear to. First, we should note that Gorsuch did not fully adopt the Privileges & Immunities approach taken by Thomas, but he strongly signaled agreement, while finding it unnecessary to reach the issue in the present case. For those interested, Gorsuch’s opinion was that the P&I Clause may well be the better vehicle, but whether we use P&I or the recent Due Process approach, the result is the same.
There was no reason for Gorsuch to write such a concurrence except to signal agreement with Thomas.
I disagree with you, a bit, on the P&I vs. Due Process argument being “pedantic.” As Mark notes above (#4), it could provide a strong basis for overturning Left-leaning Procedural Due Process cases (those generally at odds with our history & tradition), while reviving a doctrine that would still protect “fundamental rights” under the P&I label.
I don’t think that I agree with your objection to civil asset forfeiture in the absence of criminal conviction, though I’m subject to persuasion on the subject. It’s a question of the burden of proof. At the moment, I don’t particularly object to a civil forfeiture that is proven by a preponderance, rather than beyond a reasonable doubt, at least as a Constitutional matter.
As a policy matter, my guess is that you and I would agree to compromise at clear & convincing, and buy each other a beer for making such quick work of a challenging subject. :)
Not having yet read the decision, when I heard this I was confused as to why the 8th Amendment excessive fines clause was the main constitutional issue mentioned. Fines aren’t even imposed until after a trial. Forfeiture is a taking without a trial at all, and therefore without due process, which makes it sound like it belongs entirely under the 14th.
Also I find it extremely hard to believe that this is the first time the question of whether the 8th applies to states has come up.
The issue is bigger than simply burden of proof. Civil asset forfeiture is like “self-help” by the state. It need prove nothing. It simply confiscates. Then the poor citizen is left to seek redress in the courts. If the citizen retained possession until the state somehow “proved up” the forfeiture by, say, a preponderance of the evidence, then we’d only be talking about the burden of proof. But that’s not the practice. The practice is guys with guns take your stuff and if you want it back, you can hire a lawyer and go plead with the judge. Civil forfeiture combines a lowering of the burden of proof with “possession is 9/10ths of the law” to present most people with insurmountable obstacles to recovering their property while presenting the state with virtually no obstacles, and plenty of motivation, to take it. It is a shocking and vile practice. I find it literally incomprehensible that we permit it. If the state made a habit of doing it to people with means and educations – the right kind of people – it would be outlawed in about 15 minutes. But because it preys mostly on people at the margins, we look the other way and assume “they must have done something to deserve it.” Think again AP.
Forfeiture is not without a trial, though it is without a criminal trial. It is a civil case.
The cruel and unusual provision of the 8th amendment has long been applied to the states. The excessive fines provision is far less litigated. And when you read the opinion you’ll see that whether forfeiture is a fine is one of the issues, although one on which there’s controlling precedent that the Court was not inclined to overrule.
Sometimes, but not usually. Usually the sequences if forfeiture first, and any judicial proceedings have to be instituted by the claimant seeking to recover his property.
That’s basically what I thought. If forefeiture was imposed after a trial, civil or otherwise, it wouldn’t be controversial. It’s precisely because it isn’t that it appears, at least to the untrained eye, to constitute the deprivation of property without due process of law. I know there are arguments to the contrary but I never thought it was that complicated. Weird interpretations of Due process are used to justify all manner of judicial usurpations, but forfeiture seems to violate the most original understanding of the clause. The 8 th would apply, if at all, only if the value of the property forfeited was too high for the crime. But even if it wasn’t too high, it would still seem to violate due process either way.
As I said, I know nothing about constitutional law. Can someone please correct me here? To a novice, it looks like this (I know Gorsuch is a S.C. Justice, I am just saying what it looks like to a dummy like me)…
Gorsuch says “there can be no serious doubt that that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”
Which text in that Amendment makes it crystal clear? Due process, or privileges and immunities?
He’s not sure. But it’s definitely in there somewhere:
“regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment”
How exactly does a judge determine what the Constitution says, then? He explains:
“As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.”
In other words,
You got your constitutional analysis exactly right then seemed to reach the wrong conclusion. Nothing about Gorsuch’s opinion suggests motivated reasoning or results oriented judging. How about this:
I think it’s maybe more obvious what’s going on if you’re familiar with the context of the Court’s decision in this area historically.
The case is about state civil asset forfeitures. Every state’s process is a bit different. Happily for my taste, my home state of Ohio amended the law to make it sane. The prosecutor has to initiate the action in the common pleas court (our court of general jurisdiction) and must prove the case by clear and convincing evidence and the court must review the forfeiture for “proportionality” to the criminal offense.
Some (and I suspect most) states require the property owner to bring the action to release the property and force the owner to prove that the property was not contraband, used in a crime or was the product of crime. These processes incentivize law enforcement to seize property under questionable circumstances because the owner may not be able to afford the lawyer to bring the action and, since the owner has the burden of proving a negative, the owner, however innocent, has only a remote chance of success.
I am pleased the the Supremes now require a proportionality review, but the processes in many states require reform to restore fairness to the system.
Even the process in Ohio you describe is, in my opinion, inadequate (though better than most). Why is the state ever empowered to deprive you of property without proving a crime beyond a reasonable doubt?
True. You misread my comment if you thought I was saying that.
That term may imply more than I meant, which was this: the Justice’s opinion seemed to be saying that he (and the Court) had arrived at an indisputable conclusion (“Incorporation?”; “Yes.”) and only had doubts as to what text and logic (“vehicle“) led to that conclusion.
I’m having trouble communicating what I am thinking, not communicating what I’m not, and not communicating that I don’t know things I do, so I think I will shut up now :-)
It is good to get a chance to talk to someone who knows this stuff. It is deeply interesting. Thanks.
I agree that it would be better if the crime had to be proved beyond a reasonable doubt before there is a civil forfeiture, but The “beyond reasonable doubt” standard is not one that is used in civil litigation. Ohio uses the next best thing, the “clear and convincing” evidence standard.
I’m not following this. What does the standard of proof for a verdict have to do with civil forfeiture?
As I understood @catorand‘s comment, Cato was questioning why the government could take someone’s property for a crime without them being found guilty beyond a reasonable doubt. A civil forfeiture is a civil action for the government to take property as a result of the commission of a crime. The “beyond a reasonable doubt” standard is, as you say, a criminal standard. For the government’s civil action to accomplish the forfeiture, “clear and convincing evidence” is the nearest equivalent.
As far as I know, no state that has civil forfeitures of contraband, property used in a crime, or the proceeds of crime require a criminal conviction before bringing the forfeiture, although I think they should. Most states allow the government seizure, then require the property owner to bring an action to prove that the crime was not committed (or that the property is not contraband, used in the crime or proceeds of a crime). Proving a negative is tough. It is a nasty process and unfair to the property owner, I think.
In some jurisdictions, property is seized without an arrest or even an accusation of a specific crime. It can be as simple as, “You have $6000 cash in your possession. You don’t look like a rich person. The only reason you would have that much cash is if you are a dope dealer, so we’re confiscating it. Sue us if you want it back.”
A good article from The Bulwark about this decision:
https://thebulwark.com/how-the-supreme-court-struck-a-blow-against-the-imperial-presidency/
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This illustrates the conceptual problem with how civil asset forfeiture works in many states. The state just takes the property, and the owner has to work to get it back. The state takes the property without even needing to show that the person the state took it from owns the property. The $6000 could be Grandma’s money that Grandma sent with the kid for kid to buy her a car.
This is part of what’s confusing me. You can be found guilty, but not beyond a reasonable doubt? I didn’t think that was possible.
The theory behind civil asset forfeiture is that it is an action about the property itself, not the person who owns or is using the property. Civil asset forfeiture was originally based on the theory that “this property is the product of criminal activity.” Later it was expanded to include “this property was used in connection with criminal activity.” Because the action was about the property and not about the actions of a particular person, there was no [legal] need to prove the guilt of any particular people in order to justify the seizure of the property.
The most egregious cases of civil asset forfeiture involve the government taking the property of people who have no connection with the actual or alleged criminal activity except that they loaned or rented the property to the supposed criminal. Governments have seized commercial limousines because they suspected that a person conducted a drug deal while riding in the rented limousine with the commercial driver at the wheel. Governments have seized houses because they suspected that a tenant was dealing drugs or running a prostitution ring. No need for the government to show that the owner knew anything about the alleged criminal activity.
Therefore, it would be a massive improvement on the process to require the government to prove to any degree of probability that 1) criminal activity actually occurred, and 2) the owner of the property had any known connection to the criminal activity.