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In a recent statement on behalf of the US Supreme Court, Supreme Court Justice Clarence Thomas critiqued civil asset forfeiture and the abuses it has seen over the past several issues. In that statement, Justice Thomas said, “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.” The statement comes at a time when civil asset forfeiture, or the lawful seizure of assets from individuals without due process, has gained much more attention in the modern day as calls for reform have increased.
This would make this statement and the opinions of Justice Thomas very timely in relation to the greater political landscape. However, Justice Thomas is legal mind, not a political mind, so he is approaching this from a legal perspective which makes his thoughts and understanding of this all the more interesting.
To give some background, the statement was on Lisa Olivia Leonard v. Texas in which the defendant was pursuing a writ of certiorari (or judicial review) of the case. On April 1, 2013, James Leonard for pulled over for a traffic infraction in an area that was known to be a favorite spot for transporting drugs. During the investigation, the officers found a safe and during a warranted search discovered that it contained $201,000 and a bill of sale for a Pennsylvania home.
The money was then collected by the police on behalf of the state of Texas after civil asset forfeiture was authorized after arguing suspicious circumstances since James Leonard’s story changed several times during discussions with the police (eventually saying the money belonged to his mother and had been acquired by selling a home in Pennsylvania) and the Ninth District Appeals Court of Texas ruled that her testimony was insufficient to declare her an innocent owner. Her case for certiorari was eventually denied by the Supreme Court, but during the statement denying certiorari, Justice Thomas was able to give his thoughts on civil asset forfeiture.
In Section III of the statement, Justice Thomas highlights the history of justification of civil asset forfeiture in the United States. Historically, the British had allowed for statutory forfeitures of objects that were directly involved in a crime. It was first legalized by the United States Congress, however, for matters relating to shipping, mostly as a way to address piracy.
In the modern day, this has greatly expanded as the states and federal government can actually seize property in any context even if it is not directly related to an offense or crime. This proceeds civilly instead of criminally so due process is not required.
In Section II of the statement, Justice Thomas has highlighted that the purpose of civil asset forfeiture has primarily been to punish the owner of the property if they have been supposedly using it for criminal purposes. However, there are no judicial requirements on seizing the property and oversight is limited.
Unsurprisingly, there have been accusations of abuse since there is limited accountability. One such case mentioned was a report that found in the town of Tenaha, Texas that local authorities would regularly seize property from out-of-town individuals who were unlucky enough to be passing through. In another case, a man’s car and all property on him were seized and he was left on the side of the road with no means of communication.
The potential for abuse is certainly very high. As the Justice highlights, this has the tendency to target the poor specifically who traditionally use cash to do purchases. Cash, of course, is easier to seize than credit cards.
Meanwhile, the procedure is highly profitable (the Institute for Justice for that the Department of Justice Assets Forfeiture Fund took in $4.5 billion alone). Since many states permit police departments to keep up to 100% of fund obtained, this shows a very high conflict of interest in civil asset forfeiture cases.
Justice Clarence Thomas’s legal mind has presented an excellent case for civil asset forfeiture reform. He has outlined the great expanses and abuses the procedure has gone through throughout the years and the problems that have been come about.
Fortunately, there is a bill in congress right now called the Fifth Amendment Integrity Restoration (FAIR) Act introduced in the Senate by Sen. Rand Paul (R-Ky.) and in the House by Rep. Tim Walberg (R-Mich.). If the bill passes, it will increase the burden of proof needed to seize property and would eliminate the financial incentives to perform civil asset forfeiture by making all federal seizures go directly to the congressional general fund. This is clearly a bill that is in the best interests of the American people.
For now, it is best to thank Justice Thomas for his dedication to the law and further bringing this issue to the public attention.