Justice Thomas's Doubts About Civil Forfeiture

[The Minsky Moment]

BB - 8th amendment says:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This was an excessive fines case.  Determining what is excessive does involve consideration of proportionality

[Alcibiades]

Losing your car because you are speeding would be ridiculously harsh.  But I don't see how it is unconstitutional.

cruel and unusual

It's just a monetary penalty though.  Liberty is not at stake.

[Admiral Yi]

Poor Beebs. Smacked with two amendments.

The takings one doesn't apply.

[Barrister]

BB - 8th amendment says:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This was an excessive fines case.  Determining what is excessive does involve consideration of proportionality

Remember kids - I'm not a licensed US lawyer!

I stand by my earlier comments about "cruel and unusual punishments", and Berkut's fifth amendment wouldn't apply, but I wasn't aware that the 8th included language about "excessive fines".  That would certainly bring the courts into it.

[Barrister]

Losing your car because you are speeding would be ridiculously harsh.  But I don't see how it is unconstitutional.

cruel and unusual

It's just a monetary penalty though.  Liberty is not at stake.

That's the entire point to civil forfeiture laws in the first place.  Because your liberty is not at stake, the courts and police can try you on a civil standard of proof on a balance of probabilities.

[dps]

Losing your car because you are speeding would be ridiculously harsh.  But I don't see how it is unconstitutional.

cruel and unusual

It's just a monetary penalty though.  Liberty is not at stake.

That's the entire point to civil forfeiture laws in the first place.  Because your liberty is not at stake, the courts and police can try you on a civil standard of proof on a balance of probabilities.

I don't think you understand how civil forfeiture works in the US.  The police can just seize your property without you ever being even charged with a crime, much less convicted of it.

[Barrister]

I don't think you understand how civil forfeiture works in the US.  The police can just seize your property without you ever being even charged with a crime, much less convicted of it.

No I'm aware of that.  We even have a much-less-stringent civil forfeiture laws in Canada as well.  Under civil forfeiture you have to be found, on a balance of probabilities, thet the property is related to the commission of an offence.

Now I think in the US some jurisdictions have reversed the onus - it is on the person to try and how (on a BOP threshold) why the property is not related to an offence, which seems unfair.  But the basic principle is the same.

[Malthus]

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"?

[Razgovory]

I think the property itself is being accused of a crime.  It's something really fucking weird.  It's completely unjust.

[The Minsky Moment]

The Supreme Court was NOT considering whether the fine was excessive.  They weren't making any substantive evaluation of the merits of the case.

There is one and only question before them for decision: whether the excessive fines clause of the 8th amendment applies as against the states or only applies to the federal government.
It's pretty obvious that it does, as Gorsuch pointed out.  The only reason this case ever got to the Supreme Court is:

+The Supreme Court has never directly decided this specific issue, although its other decisions on "incorporation" of the Bill of Rights against the states make it clear what the result would be.
+ Since the Supreme Court never directly decided the issue before, the Indiana Supreme Court in its infinite wisdom ruled that it didn't apply against the state of Indiana.

[Malthus]

The Supreme Court was NOT considering whether the fine was excessive.  They weren't making any substantive evaluation of the merits of the case.

There is one and only question before them for decision: whether the excessive fines clause of the 8th amendment applies as against the states or only applies to the federal government.
It's pretty obvious that it does, as Gorsuch pointed out.  The only reason this case ever got to the Supreme Court is:

+The Supreme Court has never directly decided this specific issue, although its other decisions on "incorporation" of the Bill of Rights against the states make it clear what the result would be.
+ Since the Supreme Court never directly decided the issue before, the Indiana Supreme Court in its infinite wisdom ruled that it didn't apply against the state of Indiana.

Question: I know the 8th was the issue before the Supreme Court in this particular case; but why haven't such provisions been struck down as violating the due process clause?

[The Minsky Moment]

I think the property itself is being accused of a crime.  It's something really fucking weird.  It's completely unjust.

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.

[The Minsky Moment]

Question: I know the 8th was the issue before the Supreme Court in this particular case; but why haven't such provisions been struck down as violating the due process clause?

Because that would require giving substantive content to the due process clause, something very controversial in US jurisprudence. Courts tend to avoid treading through that minefield if they can avoid it.

[The Brain]

Can't you just call it a tax? You are innocent and you get no compensation.

[Barrister]

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!