Justice Thomas' Long History of Criticizing Asset Forfeiture
Alongside Sen. Rand Paul, Supreme Court Justice Clarence Thomas has become one of the most high-profile critics of “civil forfeiture.” Under this appalling practice, police can confiscate property, even from those who haven’t been charged with a crime. In a concurrence released last month, Justice Thomas surprised many when he slammed the practice as “egregious” and questioned if it’s even constitutional. Although his concurrence was brief—just six pages—Justice Thomas identified many of the glaring defects in civil forfeiture.
Since it takes place in civil court, those proceedings “often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.” Fewer safeguards means it’s even easier for innocent owners to lose their cash, cars, or their own homes.
Perversely, “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.” Justice Thomas cited how police in Tenaha, Texas seized cash from motorists and even threatened to hand their children over to Child Protective Services if they didn’t relinquish the money.
Spurring these abuses is the fact that under many civil forfeiture laws, “the law enforcement entity responsible for seizing the property often keeps it.” In turn, that creates “strong incentives to pursue forfeiture,” which has “become widespread and highly profitable.” Referencing a nationwide study on civil forfeiture by the Institute for Justice (where I work), Justice Thomas observed that “the Federal Government and many States permit 100 percent of forfeiture proceeds to flow directly to law enforcement.” And in 2014, the Justice Department’s Assets Forfeiture Fund collected $4.5 billion.
On the whole, “this system—where police can seize property with limited judicial oversight and retain it for their own use— has led to egregious and well-chronicled abuses,” he wrote.
Unfortunately for the property owner in this case, (who had over $200,000 seized when her son was pulled over in Texas), she raised her due-process arguments too late, and so, Justice Thomas, along with the rest of the court, could not grant her petition. Nevertheless, this concurrence is the latest chapter in a long, if little appreciated, defense of private property rights by Justice Thomas.
For nearly 25 years, Justice Thomas has repeatedly voiced concerns over the growing scope and scale of civil forfeiture. As far back as 1993, he wrote that he was “disturbed by the breadth of new civil forfeiture statutes” and wondered if “an appropriate case” would allow the court “to reevaluate our generally deferential approach to legislative judgments in this area of civil forfeiture.” He mused that “such a case may arise in the excessive fines context.”
Less than five years later, Justice Thomas got his wish when he penned the majority opinion in the landmark decision United States v. Bajakajian. Joining the court’s four liberals (and breaking rank with Antonin Scalia and the other conservatives), Justice Thomas ruled in favor of Hosep Bajakajian, who pled guilty to trying to transport more than $10,000 in cash out of the country without properly reporting it. As Justice Thomas explained, Bajakajian’s crime was “solely a reporting offense,” and he was “not a money launderer, a drug trafficker, or a tax evader.” Although a district court had fined Bajakajian $5,000 (the maximum allowed under the Sentencing Guidelines), the Clinton Administration sought to forfeit all of the cash Bajakajian was transporting—$357,144.
The Supreme Court ruled, however, that forfeiting Bajakajian’s money “would be grossly disproportional to the gravity of his offense,” and would violate the Eighth Amendment’s Excessive Fines Clause. The Bajakajian decision marked the first time the High Court ruled that an imposed fine was an unconstitutional excessive fine.
More recently, Justice Thomas concurred with the Supreme Court when it ruled last year against a pretrial freeze of assets “untainted” by alleged criminality. In Luis v. United States, a majority of the court ruled that freezing untainted assets violated the defendant’s Sixth Amendment right to counsel of her choice. But while a plurality of the court wanted to balance that right with the government’s interest in potentially forfeiting those assets, Justice Thomas was bolder in defending the rights of the accused. “An unlimited power to freeze a defendant’s potentially forfeitable assets in advance of trial would eviscerate the Sixth Amendment’s original meaning and purpose,” he wrote. “This conclusion leaves no room for balancing.”
Last October, Justice Thomas revealed that he “agonized” over Bennis v. Michigan, one of the Supreme Court’s most infamous civil forfeiture cases. Along with her husband, Tina Bennis jointly owned a $600 Pontiac. But when he was arrested (and later convicted) for having sex with a prostitute in a parked car, law enforcement wanted the car forfeited as a “public nuisance.” Even though Tina did not know her husband used the car for solicitation, the Supreme Court ruled that taking the car, “with no offset for her interest,” did not violate her right to due process. In other words, a majority of the Supreme Court (which included Justice Thomas) held it was completely constitutional for the government to confiscate an innocent owner’s property.
Yet even in the Bennis decision, Justice Thomas still expressed trepidation towards forfeiture. “Improperly used,” he wrote in a concurrence, “forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused…than a component of a system of justice.”
Sadly, his predictions have come true, now that forfeiture nets law enforcement billions of dollars in revenue each year. But opposing civil forfeiture has gone mainstream. Since 2014, 19 states, plus Washington, D.C., have reformed their forfeiture laws, while three states have ended the practice outright. In a rare display of bipartisan comity, the 2016 platforms for both the Democratic and Republican Parties backed tightening forfeiture laws. And just last month, Sen. Rand Paul reintroduced bipartisan legislation that would drastically overhaul federal forfeiture laws.
Perhaps the judiciary can soon follow. This concurrence shows that at least one Supreme Court Justice is eager to defend the Constitution from the ravages of civil forfeiture.
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Nick Sibilla works for the Institute for Justice
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