The United States Against $17900

The Supreme Court will be hearing a case titled United States v. Seventeen Thousand Nine Hundred Dollars in United States Currency.

Back in the days of pirates U.S. warships could commandeer the property of the pirate crew – cargo, supplies, ship and all – without a trial. Since the 1980s, thanks to the War On Drugs, police are allowed to do the same thing to people who are suspected of illegal activities, which in practice means anyone carrying cash.

We don’t know how the Supreme Court will rule: conservative justices tend to defer to police, liberals to the power of the state, and of course Anthony Kennedy, utterly lacking a coherent judicial philosophy, might throw the decision one way or another based on what he ate for breakfast.

But Justice Thomas has been an outspoken critic of Civil Asset Forfeiture: 

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. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights.

In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home…

The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding. “‘English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.’” This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.”

… I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

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…

Second, it is unclear whether courts historically permitted forfeiture 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. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt.

Late 20th century Americans liked declaring “war” on social problems – drugs, poverty, disease – all very stupid.

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