SCOTUS makes a ruling that could put an end to civil asset forfeiture as we know it.
April 24, 2017
By: Bobby Casey, GWP Managing Director
The SCOTUS made an incredible ruling on April 19th that could end civil asset forfeiture as we know it. The case itself wasn’t directly to do with civil asset forfeiture, but the wording of the opinion hardly lets on to that fact… which means a precedent was set.
The case had to do with two people who were convicted of a crime and sentenced, but later exonerated. Shannon Nelson and Louis Madden both were charged and convicted of two felonies each, all of which was overturned during their appeals process. (Source: Reason)
- Nelson was sentenced to “20 years in prison and ordered to pay $8,193 in court costs, fees, and restitution, $702 of which was taken from her inmate account before she won a new trial and was acquitted”.
- Madden “received an indeterminate prison sentence and was ordered to pay $4,413 in costs, fees, and restitution, $1,978 of which was collected before his convictions were reversed on appeal and the state decided not to prosecute him again”.
The state of Colorado took money from these people, and wouldn’t return it unless they went through the proper channels outlined in their Exoneration Act. Much like how asset forfeiture works, they would have to prove to a court their innocence. This is a very expensive process that could basically consume whatever fund they were seeking.
Moreover, the Exoneration Act treats this as “compensation”. It’s NOT compensation. It’s a refund. Your tax return isn’t “compensation”… it’s a refund. The IRS took too much of your money. Compensation would be the interest you lost while they held that money. Compensation would be opportunity costs of not having that money until March of the following year. Simply giving you the dollar amount you are owed is a refund.
It just so happens, Justice Ginsburg agrees:
“Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions,” Ginsburg writes. “To get their money back, defendants should not be saddled with any proof burden. Instead…they are entitled to be presumed innocent.”
There are differences. And those differences might matter, so I don’t want to get my hopes too high.
- This case was not based on the presumption of guilt of the money taken. Rather the money was taken after they were in fact afforded due process, and found guilty of their crimes.
- The money taken was directly tied to that conviction and was part of their sentencing.
- In the case of asset forfeiture, the owner need not be charged with a crime at all, but the property itself can be presumed guilty of being part of an illegal act. (E.g. the house could have been involved in a drug deal or where the drug deals went down.)
- In this case, the seizing of assets is mutually exclusive of the actions of the owner.
Her opinion could be interpreted narrowly or broadly, like any other Supreme Court opinion. And so now, we wait…
In the meantime there have been some developments. Iowa recently tightened their requirements on civil asset forfeiture. You cannot seize their assets valued at less than $5,000, unless the owner is convicted of a crime. For assets over that amount, the burden of proof has moved from “preponderance of evidence” to “clear and convincing evidence”. Not sure if that will really help all that much except to say that the first part is definitely in alignment with the SCOTUS ruling.
Idaho is working on getting to where Iowa is. Ohio has come a good distance in getting rid of the “profit incentive” behind asset forfeiture. It bars the practice for under $15,000 and the burden of proof shifts to the government and prosecutors rather than the defendant or their property. That’s a huge deal. Moreover, the Ohio police may not go the federal route of “profit sharing” with the federal Department of Justice, and get their cut that way for assets valued under $100,000.
The Heritage Foundation did a full review of all the various levels of reforms at the state level across the United States, most of which indicate higher thresholds for confiscation, and a greater burden of proof on the part of the police and state. While this is certainly is nice, the practice is almost entirely predicated on America’s ridiculous drug war. In the same way intrusions on our financial privacy is almost entirely predicated on the fear of tax evasion and money laundering.
What is even more disconcerting, is the apparent ignorance the current American president has on the matter. I mean, it’s fairly clear in the American Constitution that property cannot be taken unless the owner is justly compensated (5th amendment), which is somewhat the case with eminent domain; and that property will not be seized without due process (14th amendment).
The last time someone promised “Hope and Change”, we got “Nope and Chains”, so at best I can be cautiously optimistic about this ruling by the SCOTUS. But for those at organizations like the Institute for Justice or the ACLU, who fight against policing for profit, this ruling could be a tremendous boon for the cause.
I hope it never happens to you. The more material wealth you keep distanced from you, the better. Don’t give the litigious or the corrupt police state a reason to think you’re their cash cow. Corporate structuring could offer a layer of protection against this sort of legalized theft.
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This is one case where I can proudly state that I agree with an opinion of Ruth Bader Ginsberg.
Civil asset theft (I’ll use the term, “theft,” since the decision to give up the property is not voluntary) should be considered a criminal enterprise, and the courts should treat it that way. This always becomes the way people think when they realize that their property can be stolen under almost any pretense by “law enforcement” without their right to prevent it.
No one, not even law enforcement authorities, should be above the law. And right now, we have too many laws to have to comprehend. Most of which are unnecessary.
Besides, law enforcement is supposed to be an expense item for the entity, not a revenue-raising stream.
Even a broken clock is right twice a day! ha!
“Civil” asset “forfeiture” is such a misnomer, indeed. It’s road piracy plain and simple. I think where the revenue stream comes in, is that cities have their budgets, and when they reach that limit, police departments are basically charged to get their money somewhere else to fund god-only-knows. It becomes their slush fund. So pretty much every single function of government operates at a loss. Not a single entity within it generates “revue” or “creates wealth”. It’s entirely funded by various forms of theft. Whether it’s compulsory taxes, fines, fees, or confiscation, that is how it’s funded. But because they can steal with such impunity, what do you do? I mean, how many times have they “reviewed themselves” and miraculously found themselves innocent of any wrong doing? It’s a racket. But I think this ruling could be a turning point in at least THIS particular aspect of theft. We shall see in the coming months and years.