Justice Thomas's Doubts About Civil Forfeiture

[Admiral Yi]

It's called "in rem" ("against the thing").  Like many other weird things in the law, it has a long and ancient pedigree that in this case goes back to 17th time  of privateers and mercentalism.  If you were a privateer operating under authorizing letters and captured an enemy ship, how could you prove it was properly taken and thus secure the "prize"?  You couldn't require a suit against the former owners of the ship, because and English court couldn't secure jurisdiction over an enemy captain or sovereign.  So the courts created the legal fiction suing the ship itself.  The same procedure was used in dealing with smugglers or others who violated mercantilist shipping regulations like the Navigation Acts.  That gives rise to the general legal concept of a lawsuit that is brought against a physical instrumentality used in violating the law.

Interesting and informative.

[alfred russel]

The one good thing about Thomas is that he actually takes his purported judicial philosophy seriously and his rulings are consisntent. A noted difference to Scalia who talked a good game, but then violated his philosopy whenever it's convenient.

Tim, they voted together 91% of the time, per this article.

https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html?_r=0

Without googling stuff, how many of those 9% disagreements can you tell us about, and how many of those opinions have you read?

Over a year later and I'm still waiting for an answer. 

[Eddie Teach]

It takes a while to find that stuff if you can't use search engines.

[dps]

This took about 10 seconds. Are you sure you are a lawyer beebs?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I'd highlight in a different spot - the part you highlighted is really about expropriation. A fine or forfeiture isn't a "taking for public use" and you never get any "just compensation" - it's a species of punishment.

Though how it survives this part is difficult to say:

" nor be deprived of life, liberty, or property, without due process of law ".

I mean, the whole point of civil forfeiture is that the government takes your stuff without proving you have been guilty of a crime (in some jurisdictions). How can that survive as "due process"?

Because there is a "due process".  You can go to court and everything!

I'm not sure if you're serious, and I really hope you're not,  but the point is that property (or life or liberty) isn't to be taken without due process being followed before the property is siezed.  The way it works right now, there isn't any process at all being followed--an individual cop can literally pull you over without even reasonable cause and decide to seize the car you were driving.  There doesn't even have to have been a specific crime alleged to have been committed.

[crazy canuck]

This took about 10 seconds. Are you sure you are a lawyer beebs?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I'd highlight in a different spot - the part you highlighted is really about expropriation. A fine or forfeiture isn't a "taking for public use" and you never get any "just compensation" - it's a species of punishment.

Though how it survives this part is difficult to say:

" nor be deprived of life, liberty, or property, without due process of law ".

I mean, the whole point of civil forfeiture is that the government takes your stuff without proving you have been guilty of a crime (in some jurisdictions). How can that survive as "due process"?

Because there is a "due process".  You can go to court and everything!

I'm not sure if you're serious, and I really hope you're not,  but the point is that property (or life or liberty) isn't to be taken without due process being followed before the property is siezed.  The way it works right now, there isn't any process at all being followed--an individual cop can literally pull you over without even reasonable cause and decide to seize the car you were driving.  There doesn't even have to have been a specific crime alleged to have been committed.

BB is coming from the Canadian context where property rights are not constitutionally protected.  But that brings us back the Malthus' question.  In Canada, where there is no constitutional protection for property, we seem to have better procedural protections against seizure.

[jimmy olsen]

Supreme Court rules 9 to 0 to limit civil forfeiture
https://www.google.com/amp/s/www.vox.com/platform/amp/policy-and-politics/2019/2/20/18233245/supreme-court-timbs-v-indiana-ruling-excessive-fines-civil-forfeiture

[FunkMonk]

Freedom from the tyranny of the state 

[grumbler]

JR, how common is it for a state supreme court which ruled unanimously one way to be overturned by a unanimous USSC judgement?  I mean, that's gotta sting.  It also doesn't say much for the methods Indiana uses to select justices for its supreme court.

[The Minsky Moment]

JR, how common is it for a state supreme court which ruled unanimously one way to be overturned by a unanimous USSC judgement?  I mean, that's gotta sting.  It also doesn't say much for the methods Indiana uses to select justices for its supreme court.

It's probably uncommon but that's just because the modern Court only hears a handful state court appeals a term.  That said - the Court sometimes takes an appeal in a federal case with the intention to affirm it and thereby clarify a disputed area of federal law. But when the Court does take an appeal from the state courts, it's usually to reverse it.

It's not that unusual for a state court to get out of step with the constitutional mainstream or lag behind - think southern state courts in civil rights era. Some state supreme courts have elected judges or (like Indiana) elections for judges seeking another term, which probably doesn't help.

[The Minsky Moment]

BTW I can't figure out why the Indiana Supreme Court decided that opposing incorporation of the excessive fines clause of the 8th amendment was a matter of high principle.  Maybe fear of being branded as anti-law enforcement??

[AnchorClanker]

BTW I can't figure out why the Indiana Supreme Court decided that opposing incorporation of the excessive fines clause of the 8th amendment was a matter of high principle.  Maybe fear of being branded as anti-law enforcement??

One of my best friends from college is clerking for the Chief of the Indiana SC, I'll ask him if he has any insight he can pass along.

[The Minsky Moment]

I went back and read the Indiana Supreme Court's decision on this and although worse decisions have been made this one was far from a judicial masterpiece.  After noting that the US Supreme Court, while dropping a strong hint a several years back that the Excessive Fines clause should be applicable vs the states, had also recently stated that it never formally ruled as such, the Indiana court reasoned:

Given the lack of clear direction from the Supreme Court, we have a couple of options. One option is to ignore McDonald and follow the lead of some courts that have either applied the Excessive Fines Clause to challenged state action or assumed without deciding that the Clause applies . . . A second option is to await guidance from the Supreme Court and decline to find or assume incorporation until the Supreme Court decides the issue authoritatively. We choose this latter, more cautious approach for two reasons. First, although the Supreme Court has addressed this issue only in dicta, its statement in McDonald that the Clause has not been incorporated is entitled to more weight because it is the Court's most recent. Second, Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated. An important corollary is that Indiana has its own system of legal, including constitutional, protections for its citizens and other persons within its jurisdiction. Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.

That second point has the whiff of B.S. to me, the kind of rhetoric one would expect from Southern state courts in the Jim Crow era. Sure Indiana is a "sovereign state" but in "our federal system" that means federal law is just as much a part of Indiana law as Indiana state law is. Actually more so - it is according the Constitution the supreme law of the land and last I checked, that land includes Indiana. The Excessive Fines clause is NOT some kind of alien "federal test" that threatens to muck around with the Indiana way of doing things. It's the law of the state of Indiana. Legally, it's as Indiana as Bobby Knight Appreciation Day.

When a case presents an issue of federal constitutional law to a state court, the state court is supposed to decide it, not punt it away because the US Supreme Court hasn't spoon-fed them an answer. And while the state court is bound to apply US Supreme Court precedent in interpreting federal constitutional law, if there is no such precedent, it should do its job and interpret the law to the best of its ability.