End Notes
[1] Letter from Matt Miller to Pima County Deputy County Attorney Kevin Krejci, August 20, 2020, https://www.goldwaterinstitute.org/wp-content/uploads/2020/08/Letter-regarding-mitigation-final.pdf.
[2] Jacob Sullum, “Tucson Handyman Gets His Jeep Back After He Threatens to Fight the Forfeiture,” Reason.com, August 27, 2020, https://reason.com/2020/08/27/tucson-handyman-gets-his-jeep-back-after-he-threatens-to-fight-the-forfeiture/.
[3] Knepper, et al., 5.
[4] R.W. Dyson, ed., Augustine: The City of God Against the Pagans (New York: Cambridge University Press, 2002), 147-48.
[5] Aristotle, Politics, 1279a, in Richard McKeon, ed., Basic Works of Aristotle (New York: Random House, 1941), 1185. The Roman statesman Cicero gave the same answer when he wrote that a country without justice, might have “the appearance of a most flourishing state,” but “in strict truth” it would be “no [state] at all.” Cicero, Republic book 3 § 31, in C.D. Yonge, trans., Cicero’s Tusculan Disputations (New York: Harper & Bros., 1877), 441.
[6] John Locke, First Treatise of Civil Government §27, in Peter Laslett, ed., John Locke: Two Treatises of Civil Government (New York: Oxford University Press, 2nd ed. 1963), 195.
[7] Anna Stilz, “Legitimacy and Self-Determination,” Nomos LXI (New York: NYU Press, 2019).
[8] U.S. Const. amend. VIII; art. I § 9 cl. 7.
[9] English Bill of Rights ¶ 6 (1689).
[10] English Bill of Rights ¶¶ 13, 14 (1689).
[11] John D. Bessler, “A Century in the Making: The Glorious Revolution, the American Revolution, and the Origins of the U.S. Constitution’’s Eighth Amendment,” William & Mary Bill of Rights Journal 27 (2019), 1023-25.
[12] Bessler, 1032-33.
[13] Robert D. Hume, “The Value of Money in Eighteenth-Century England: Incomes, Prices, Buying Power—and Some Problems in Cultural Economics,” Huntington Library Quarterly 77 (4) (2014), 376.
[14] U.S. Const. amend. VIII.
[15] Bessler, 1034.
[16] Locke, Second Treatise § 233, in Laslett, 469. Locke was quoting the Catholic theologian William Barclay.
[17] U.S. Const. art. I § 7 cl. 1.
[18] U.S. Const. art. I § 9 cl. 3; art. I § 10 cl. 1; art. III § 3.
[19] U.S. Const. art. III § 3.
[20] U.S. Const. amend. V.
[21] U.S. Const. amend. V.
[22] James Madison, The Federalist No. 45 (J. Cooke, ed., Middletown: Wesleyan University Press, 1961), 309.
[23] The most famous were the Mytilenian Decree of 428 B.C. and the ostracism of Alcibiades in 416 B.C. In the former case, the people of Athens, angered by the rebellion of their colony at Mytilene, voted to dispatch troops to destroy that city and kill and enslave its population. The next day, they regretted their decision and dispatched messengers to stop the arm—which just barely arrived in time. In the latter case, political opponents of the talented general Alcibiades used falsified evidence to get him banished from the city, whereupon he joined the army of the Spartans and led troops in battle against Athens. Incidents like these illustrated the fact that one of the greatest weaknesses of democracy was the unpredictable and often unprincipled behavior of the majority.
[24] Leonard Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 1999), 71.
[25] Jacob Reynolds, “The Rule of Law and the Origins of the Bill of Attainder Clause,” St. Thomas Law Review 18 (2005), 195-97.
[26] Marcus Gallo, “Property Rights, Citizenship, Corruption, and Inequality: Confiscating Loyalist Estates during the American Revolution,” Pennsylvania History 86(4) (Autumn 2019): 474-510.
[27] William Jay, The Life of John Jay (New York: J. & J. Harper, 1833), vol. 1, 112.
[28] Second Letter from Phocion Apr. 1784, The Papers of Alexander Hamilton (New York: Columbia University Press, 1962), vol. 3, 544.
[29] Letter from Phocion, Jan. 1784, Hamilton: Writings, 129.
[30] Ibid., 137.
[31] Federalist No. 44, 301.
[32] Federalist No. 43 (J. Cooke, ed., Middletown, CT: Wesleyan University Press, 1961), 290.
[33] Charles F. Hobston, ed., John Marshall: Writings (New York: Library of America, 2010), 20-21.
[34] Bernard Bailyn, ed., Debate on the Constitution (New York: Library of America, 1993), vol. 1, 41.
[35] Kermit L. Hall & Mark David Hall, eds., Collected Works of James Wilson (Indianapolis: Liberty Fund, 2007), vol. 2, 1111.
[36] Richard Bellamy, ed., Beccaria: “On Crimes and Punishments” And Other Writings (Cambridge: Cambridge University Press, 1995), 58-59.
[37] Merrill Peterson, ed., Jefferson: Writings (New York: Library of America, 1984), 354.
[38] Ibid., 1112-13.
[39] U.S. Const. art. III § 3.
[40] Timothy Sandefur, The Conscience of the Constitution (Washington, D.C.: Cato Institute, 2016), 71-94.
[41] Wells v. Martin, 2 S.C.L. 20, 21 (S.C. Const. App. 1796).
[42] Leonard W. Levy, A License to Steal (Chapel Hill: University of North Carolina Press, 1996), 43.
[43] 8 U.S. 443 (1808).
[44] Levy, 51. It has long been said that the idea of in rem litigation has its roots in ancient religious customs about inanimate objects or animals having committed crimes. This appears to be untrue; as Levy explains, some influential legal scholars such as William Blackstone believed this and included it in their writings, which perpetuated this mistake, but in fact today’s forfeiture laws have more in common with the admiralty law principle of in rem forfeiture than with any religious tradition.
[45] Adam Crepelle, “Probable Cause to Plunder: Civil Asset Forfeiture and the Problems It Creates,” Wake Forest Journal of Law and Policy 7 (2017): 318-19.
[46] This reference to “foreign” jurisdiction alludes to the fact that admiralty law is based in Roman law instead of the English common law. Among other things, civil law courts are “inquisitorial,” meaning that the judge asks questions and combines an investigative role with an adjudicative role. In a common law system, by contrast, the lawyers representing the parties ask questions and the judge decides the case based on the evidence they choose to present.
[47] Donald J. Boudreaux and A.C. Pritchard, “Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition,” Missouri Law Review 61 (1996): 608.
[48] Gordon Wood, ed., Adams: Revolutionary Writings 1755-1775 (New York: Library of America, 2011), 126.
[49] See James Oakes, Freedom National (New York: Norton, 2013), 226-39.
[50] Miller v. United States, 78 U.S. 268 (1870).
[51] Id. at 323 (Field, J., dissenting).
[52] Id. at 320-21 (Field, J., dissenting).
[53] Id. at 323 (Field, J., dissenting).
[54] Boudreaux & Pritchard, 627-31.
[55] Ibid., 629.
[56] Eric Blumenson and Eva Nilsen, “Policing for Profit: The Drug War’s Hidden Economic Agenda,” University of Chicago Law Review 65 (1998), 63 n.102.
[57] Ibid., 77.
[58] Lisa Knepper, et al., Policing for Profit (Institute for Justice, 3d ed. 2020), Stefan B. Herpel, “Toward A Constitutional Kleptocracy: Civil Forfeiture in America,” Michigan Law Review 96 (1998): 1910-46.
[59] Jacob Sullum, “The Cops Took This Guy’s $15,000 Jeep Because His Girlfriend Allegedly Used It for a $25 Marijuana Sale,” Reason.com, August 21, 2020, https://reason.com/2020/08/21/the-cops-took-this-guys-15000-jeep-because-his-girlfriend-allegedly-used-it-for-a-25-marijuana-sale/.
[60] Emily Mahoney and Agnel Philip, “Arizona Police Seized $200 Million in Personal Property, But Where Did the Money Go?” Arizona Republic, January 13, 2017, https://www.azcentral.com/story/news/local/arizona/2017/01/13/forfeiture-laws-arizona-police-seizure-millions-cash-police-crime/96487562/.
[61] Knepper, et al., 5.
[62] Christopher Ingraham, “Law Enforcement Took More Stuff from People Than Burglars Did Last Year,” Washington Post, November 23, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-took-more-stuff-from-people-than-burglars-did-last-year/+&cd=1&hl=en&ct=clnk&gl=us.
[63] Knepper, et al., 6; J.F., “Fighting Crime through Superior Steak,” The Economist, October 15, 2013, https://www.economist.com/blogs/democracyinamerica/2013/10/asset-forfeiture.
[64] Knepper, et al., 20.
[65] Bennis v. Michigan, 516 U.S. 442 (1996). Specifically, because the solicitation of prostitution occurred in the car, the court held that the car was involved in the offense and could be confiscated notwithstanding the co-owner’s innocence.
[66] Henry Hyde, “Forfeiture Reform: Now, or Never?” (Remarks at the Cato Institute, May 3, 1999); Henry Hyde, Forfeiting Our Property: Is Your Property Safe from Seizure? (Washington, D.C.: Cato Institute, 1995).
[67] Nadine Strossen, Statement before the House Judiciary Committee, June 11, 1997, https://www.aclu.org/other/nadine-strossens-congressional-testimony-civil-asset-forfeiture-reform.
[68] Austin v. United States, 509 U.S. 602, 612 (1993).
[69] Timbs v. Indiana, 139 S.Ct. 682 (2019).
[70] Brian D. Kelly, Does Forfeiture Work?: Evidence from the States (Institute for Justice, Feb. 2021), https://ij.org/wp-content/uploads/2021/02/does-forfeiture-work-web.pdf
[71] Brent Skorup, “Ensuring Eighth Amendment Protection from Excessive Fines in Civil Asset Forfeiture Cases,” George Mason University Civil Rights Law Journal 22 (2012): 428; Adam Crepelle, “Probable Cause to Plunder: Civil Asset Forfeiture and the Problems It Creates,” Wake Forest Journal of Law & Policy 7 (2017): 361.
[72] Knepper, et al., 5.
[73] Brian D. Kelly and Maureen Kole, “The Effects of Asset Forfeiture on Policing: A Panel Approach,” Economic Inquiry 54(1) (2016): 558-75; Brian D. Kelly, “Fighting Crime or Raising Revenue: Testing Opposing Views of Forfeiture” (Institute for Justice, June 2019), https://ij.org/report/fighting-crime-or-raising-revenue/.
[74] Among the few papers to discuss this is Jefferson E. Holcomb, et al., “Civil Asset Forfeiture Laws and Equitable Sharing Activity by the Police,” Criminology & Public Policy 17(1) (2018): 101-27. See also Jonathan Blanks, “Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy,” Case Wester Reserve Law Review 66 (2016): 931-946.
[75] Alexis de Tocqueville, Democracy in America (George Lawrence trans., J.P. Mayer, ed., New York: Harper Perennial, 1969), 287.
[76] Ibid., 292.
[77] Virginia Declaration of Rights ¶ 15.
[78] Letter to Officers of the First Brigade of the Third Division of the Massachusetts Militia, October 11, 1798, 9; Charles Francis Adams, ed., Works of John Adams 229 (Boston: Little, Brown, 1854).
[79] Jefferson: Writings, 246.
[80] Ibid.
[81] Gordon Wood, ed., John Adams: Writings from the New Nation 1784-1826 (New York: Library of America, 2016), 123-24.
[82] Tom R. Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990), ch. 3.
[83] Jonathan Blanks, “Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy,” Case Western Reserve Law Review 66 (2016): 933.
[84] Investigation of the Ferguson Police Department (U.S. Department of Justice, March 4, 2015), p. 2, 88.
[85] Ibid., 6.
[86] John L. Worrall, “Addicted to the Drug War: The Role of Civil Asset Forfeiture as a Budgetary Necessity in Contemporary Law Enforcement,” Journal of Criminal Justice 29 (2001): 179.
[87] In 1795, Supreme Court Justice William Patterson wrote that “every person ought to contribute his proportion for public purposes and public exigencies; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompence in value. This would be laying a burden upon an individual, which ought to be sustained by the society at large.” VanHorne’s Lessee v. Dorrance, 2 U.S. 304, 310 (C.C.D. Pa. 1795). More than 150 years later, the Supreme Court reiterated the point that the Constitution “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).
[88] Alberto Cuadra, et al., “Spending Seized Assets,” Washington Post, October 11, 2014, https://www.washingtonpost.com/wp-srv/special/investigative/asset-seizures/; Dara Lind, “How Police Can Take Your Stuff, Sell It, And Pay for Armored Cars with The Money,” Vox.com, March 28, 2016, https://www.vox.com/2014/10/14/6969335/civil-asset-forfeiture-what-is-how-work-equitable-sharing-police-seizure.
[89] John Burnett, “Sheriff Under Scrutiny over Drug Money Spending,” All Things Considered, June 18, 2008, https://www.npr.org/templates/story/story.php?storyId=91638378&ps=rs.
[90] Matt Clarke, “Policing for Profit: Law Enforcement Agencies Abuse Civil Asset Forfeiture,” Prison Legal News, July 28, 2017, https://www.prisonlegalnews.org/news/2017/jul/28/policing-profit-law-enforcement-agencies-abuse-civil-asset-forfeiture/.
[91] J. Mitchell Miller and Lance H. Selva, “Drug Enforcement’s Double-Edge Sword: An Assessment of Asset Forfeiture Programs,” Justice Quarterly 11(2) (June 1994): 325.
[92] Ibid., 328.
[93] Ibid., 327.
[94] Ibid., 326.
[95] Ibid., 332-33.
[96] Ibid., 328.
[97] Rachel A. Harmon, “Federal Programs and the Real Costs of Policing,” New York University Law Review 90 (2015): 923.
[98] Robert J. Sampson and Dawn Jeglum Bartusch, “Legal Cynicism and (Subcultural?) Toleration of Deviance: The Neighborhood Context of Racial Differences,” Law & Society Review 32(4) (1998): 777-804; Robert K. Kane, “Compromised Police Legitimacy as a Predictor of Violent Crime in Structurally Disadvantaged Communities,” Criminology 43 (2005): 473-74.
[99] Ellijah Anderson, Code of the Street: Decency, Violence and the Moral Life of the Inner City (New York: Norton, 1999), 43.
[100] Gwen Prowse, et al., “The State from Below: Distorted Responsiveness in Policed Communities,” Urban Affairs Review 56(3) (2019), 1.
[101] Ibid., 6.
[102] Ibid., 25.
[103] See Jeffrey Fagan and Tracey L. Meares, “Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities,” Ohio State Criminal Law Journal 6 (2008), 215-22; Tracey Meares, “The Legitimacy of Police Among Young African-American Men,” Marquette Law Review 92 (2009): 651-666.
[104] As Anderson writes, “cynicism about the effectiveness of the police mixed with community suspicion of their behavior” prevents citizens “from embracing the notion that they must rely heavily on the formal means of social control to maintain even the minimum freedom of movement they enjoy on the streets.” Elijah Anderson, Race, Class, and Change in an Urban Community, (Chicago: University of Chicago Press, 1990), 205.
[105] Gordon Wood, ed., American Revolution: Writings from the Pamphlet Debate 1764-1772 (New York: Library of America, 2015), 531.
[106] See Jennifer Hardy and Colin King, “Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids,” Criminal Law and Philosophy 11 (2017): 733-57, for a similar argument based on the use of civil proceedings in criminal matters in the U.K.
[107] Jason Snead, “An Overview of Recent State-Level Forfeiture Reforms,” Heritage Foundation, August 23, 2016, https://www.heritage.org/crime-and-justice/report/overview-recent-state-level-forfeiture-reforms; Institute for Justice, “Civil Forfeiture Reforms on the State Level,” https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/.
[108] Jenna Bentley, “This Bill Would Stop Arizona from Seizing Property from Law-Abiding Citizens,” In Defense of Liberty, May 21, 2020, https://indefenseofliberty.blog/2020/05/21/this-bill-would-stop-arizona-from-seizing-property-from-law-abiding-citizens/Rick Pluta; “Governor Signs Bill to Require Criminal Conviction Before Assets Are Seized,” Michigan Radio, May 9, 2019, https://www.michiganradio.org/post/governor-signs-bill-require-criminal-conviction-assets-are-seized.
[109] Timbs v. Indiana, 139 S. Ct. 682 (2019).
[110] Leonard v. Texas, 137 S. Ct. 847 (2017) (Thomas, J., concurring in denial of certiorari).
[111] People ex rel. Hartrich v. 2010 Harley-Davidson, 104 N.E.3d 1179, 1207 (Ill. 2018).
[112] Richardson v. $20,771 in U.S. Currency, Case No. 2017-CP-26-07411 (15th Cir. August 28, 2019), 6-7.
[113] “Predatory Cities,” California Law Review 108 (2020): 170 (“government illegality”).
[114] Collected Works of James Wilson, vol. 2, 1111.