Supreme Court Justices Question Civil Asset Forfeiture

The U.S. Supreme Court ruled today that when the government confiscates a car under the “civil asset forfeiture” laws, it owes the owner a “timely” hearing—but doesn’t have to hold a preliminary hearing to decide whether it can keep the car while the lawsuit is proceeding. It’s an unfortunate decision for citizens who face a constant threat of property seizure under an antiquated and unjustifiable forfeiture scheme that has been systematically abused in many states. The silver lining, however, is that several justices expressed discomfort with the whole notion of forfeiture, and expressed hope that a future lawsuit might curtail its abuse.

Today’s case involved two automobile owners whose cars were taken from them by police who suspected they (the cars, that is, not the people) were involved in drug offenses. The absurd fiction of today’s forfeiture laws holds that inanimate objects can be tainted by their involvement in a crime, and can therefore be seized by police and prosecutors without giving owners the type of legal protections that they would be accorded if they themselves were accused of criminal acts. And because law enforcement is allowed to keep the proceeds of these seizures, the result has been termed “policing for profit.” The law enforcement community can fund its operations from these seizures, rather than from tax dollars—which renders them less accountable to voters, and more likely to abuse their authority for financial gain, rather than actually fighting crime.

The Goldwater Institute—joined by the Pacific Legal Foundation and the Manhattan Institute—filed a brief urging the Court to accord property owners the kind of preliminary hearing they’d be entitled to if they had themselves been put in jail. Prosecutors can’t keep someone in jail awaiting trial without giving the accused a preliminary hearing to show they have good reason to do so—and since the theory of forfeiture is that the object is somehow responsible for the crime, the same rule ought to apply to property. In other words, the property owner should—at least in most cases—be allowed a chance to reclaim seized property during the time it takes for a judge to decide whether or not the state had the authority to seize it.

The justices rejected that argument, however, holding that as long as a property owner eventually gets a hearing in the end (which the court called a “timely” hearing, although that doesn’t mean prompt or speedy), that’s good enough. Relying entirely on an unquestioning adherence to precedent from forty years ago, the Court held that the Constitution “does not require a separate preliminary hearing”—and therefore that prosecutors can hold a person’s property until it gets around to giving the person a “timely” hearing (which, to repeat, does not actually mean timely—it can be a long wait).

The good news, however, is between the lines. In a footnote, the majority emphasized that they were “not address[ing] any due process issue related to civil forfeiture other than the question about a separate preliminary hearing,” and rested its decision solely on old precedents which it did not actually try to defend. Meanwhile, five justices—an actual majority of the Court—expressed their discomfort with forfeiture.

“The due process questions surrounding these relatively new civil forfeiture practices are many,” wrote Justice Neil Gorsuch, in an opinion joined by Justice Clarence Thomas. “How is it that, in civil forfeiture, the government may confiscate property first and provide [due] process later?” The answer appears to be history, rather than justice—and the fact that those whose property is taken often have little real chance to defend themselves: “Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have ‘led to egregious and well-chronicled abuses’? Perhaps it has something to do with the relative lack of power of those on whom the system preys. Perhaps government agencies’ increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle…. In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule…. Perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule.”

Justices Sotomayor, Kagan, and Jackson were even more explicit: “In 32 States and the federal system, when law enforcement agencies forfeit property, the proceeds go to their own budgets,” they observed. “As a result, police agencies often have a financial incentive to seize as many cars as possible and try to retain them. The forfeiture revenue is not a supplement; many police agencies in fact depend on cash flow from forfeitures for their budgets. These cash incentives not only encourage counties to create labyrinthine processes for retrieving property in the hopes that innocent owners will abandon attempts at recovery, they also influence which laws police enforce, how they enforce them, and who they enforce them against.”

As we argued in our brief, the result is not only a distortion of our justice system, but a growing sense of cynicism toward police and the government more generally—problems that America’s founding fathers warned about when they spoke out against forfeiture laws more than two centuries ago. When citizens come to view police as predators rather than protectors, they are less likely to rely on the legal system to resolve disputes, and may resort to vigilantism, instead. And when they see the harsh outcomes that forfeiture laws can lead to, it encourages people to sympathize with criminals rather than with prosecutors, thus undermining the effectiveness and weakening the strength, of government itself.

It’s disappointing that the Court refused to take a step toward increasing protections against forfeiture abuse—but the fact that most of the justices expressed deep concerns over the way in which forfeiture contradicts the promises of due process of law is a refreshing sign, and gives hope that the Court will take up these broader issues soon.

You can learn more about the Goldwater Institute’s work fighting forfeiture abuse here and read our report here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.