The one good thing about Thomas is that he actually takes his purported judicial philosophy seriously and his rulings are consistent. A noted difference to Scalia who talked a good game, but then violated his philosophy whenever it's convenient. I have a hard time seeing Thomas upholding this kind of chicanery.
https://www.theatlantic.com/politics/archive/2017/04/clarence-thomas-civil-forfeiture/521583/ (https://www.theatlantic.com/politics/archive/2017/04/clarence-thomas-civil-forfeiture/521583/)
QuoteJustice Thomas's Doubts About Civil Forfeiture
The Supreme Court justice reiterated his wariness of the controversial police tactic earlier this month. A new Justice Department report seems to support his concern.
David A. Graham (https://www.theatlantic.com/author/david-a-graham/)
The U.S. Supreme Court receives thousands of appeals from the nation's lower courts each year. It declines to hear almost all of them. But for Justice Clarence Thomas, one of those rejected cases earlier this month gave him the chance to challenge a widely criticized police practice: civil forfeiture.
Leonard v. Texas reached the Court after Lisa Leonard sought to overturn Texas's seizure of roughly $200,000 in cash from a safe in her son's car. In 2013, Liberty County police officers pulled him and his girlfriend over along what the state described as a "known drug corridor," a law-enforcement term that can be applied to most major interstate highways. Officers seized the money and argued in local courts that the state could keep it, alleging it was likely the profits from drug sales.
Leonard, an IRS officer, said the cash was hers, denied it was related to any drug sales, and told the courts it constituted the proceeds from the recent sale of a house she'd owned in Pennsylvania. A bill of sale for the property had been found alongside the cash in the safe. Leonard testified that she started storing her money in safes after the stock market crashed in 2008, and that her son was bringing the money to Texas so she could buy him and his girlfriend a house there. The Texas courts sided with police, who only had to prove that a "preponderance of the evidence" showed the money was tied to drug activity.
Leonard asked the Supreme Court to overturn their decisions on due-process grounds. Because Leonard hadn't raised that claim in the state courts during her initial appeal, Thomas agreed with his colleagues' decision to decline review of it at their stage of the legal process. But he also sent a clear signal that he'd like to revisit the issue in the future. "Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail," he concluded.
Thomas isn't the only one to question civil forfeiture in recent years. The practice allows law-enforcement agencies to seize cash, assets, and property from people suspected of criminal activity. While forms of the practice have existed since the country's founding, a history Thomas himself acknowledged, state and federal agencies dramatically expanded its usage in the last 30 years during the war on drugs. That's come with lucrative benefits for the agencies conducting the seizures, since many of them are able to keep the proceeds of what they take.
"This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses," Thomas wrote in his statement. He cited a New Yorker article on a small Texas town where police and prosecutors collaborate to seize cash and goods (http://www.newyorker.com/magazine/2013/08/12/taken) from out-of-town motorists passing through, then split the proceeds between themselves. "These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings," he noted.
Law-enforcement agencies often defend forfeiture as a valuable tool when tackling drug cartels and white-collar criminals. But forfeiture's critics often echo Thomas's concern that ordinary people, not the El Chapos and Bernie Madoffs of the world, are far more likely to be dispossessed by the process. Even among the consensus issues of liberal and conservative criminal-justice reformers, it stands out as a common villain. A report by the Heritage Foundation, one of the right's most influential think tanks, concluded in 2015 that forfeiture laws are "in serious need of reform (http://www.heritage.org/crime-and-justice/report/civil-asset-forfeiture-good-intentions-gone-awry-and-the-need-reform)." The American Civil Liberties Union has long contended that modern forfeiture violates the Constitution's due-process protections, as Leonard argued.
Federal watchdogs have also challenged the government's forfeiture practices. The Justice Department's Office of the Inspector General released a report Wednesday on its investigation into the department's forfeiture programs, which have brought in about $28 billion over the last decade. It focused on seizures by the Drug Enforcement Agency, which accounts for about 80 percent of the Justice Department's total haul. Civil forfeiture can be profitable for the agency: The report said the DEA has seized roughly $4.15 billion in cash alone since 2007. (Other assets like cars and property weren't counted, and they can bring in even larger sums.)
Because the federal government doesn't keep data collections on its forfeiture programs for further study, the report instead examined a sample of 100 cases to discern any trends. It also excluded cases where agency officials didn't find drugs or obtain a warrant to focus on encounters with lessened criminal suspicion. Of those 100 cases, 85 of them took place at transit hubs—airports, bus and train stations, and so on. That's a large share, but not a surprising one: My colleague Conor Friedersdorf reported in 2015 on how targeting travelers is a common DEA practice (https://www.theatlantic.com/politics/archive/2015/05/how-the-dea-harasses-amtrak-passengers/393230/).
What's eye-opening about the Inspector General's findings is how many of the seizures weren't connected to any larger policing purpose. The report says the DEA only verified that 44 of the seizures had been tied to ongoing investigations or had led to new investigations, arrests, or prosecutions. In other words, more than half of the total seizures didn't further any law-enforcement efforts. And for the large subset that took place at transit hubs, where the stops are more likely to be indiscriminate, a whopping two-thirds of seizures didn't appear to benefit any investigations.
Unsurprisingly, the Inspector General's office wasn't thrilled by these findings. "When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution," the report said sternly.
As a remedy, the report's conclusion focused on policy and training issues: Inadequate guidance led to this problem, it suggested, and better guidance can fix it. But forfeiture skeptics tend to see deeper issues at work than can be solved by the crafting of intra-agency policies. Thomas, for example, raised concerns about the Supreme Court's own precedents on the subject, which determine the legal thresholds that must be met before federal and state law-enforcement agencies can seize a person's cash and assets.
"Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable," he wrote, citing critical reports by the Institute of Justice, a libertarian nonprofit law firm. "And because the law-enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture."
Thomas didn't explicitly state earlier this month that he would vote to limit forfeiture's scope. But he and other Supreme Court justices occasionally craft their concurrences and dissents as a sort of flare gun to catch lawyers' attention on an issue. Justice Stephen Breyer, for example, has frequently written dissents in recent years urging his colleagues to revisit the constitutionality of the death penalty. In a concurrence two years ago, Justice Anthony Kennedy all but demanded (https://www.theatlantic.com/politics/archive/2015/06/kalief-browder-justice-kennedy-solitary-confinement/396320/) the legal community bring a case before the Court to address solitary confinement.
Accordingly, Thomas strongly signaled that he thinks the long-standing deference to law-enforcement agencies is untenable. "In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation," he surmised. He left unsaid that such a realignment would almost certainly narrow forfeiture's scope.
The justice's discomfort with forfeiture has built slowly since his early tenure. In 1993, two years after he joined the Court, he noted in a partial concurrence in U.S. v. James Daniel Good Real Property that he was "disturbed by the breath of new civil-forfeiture statutes." He and the other justices ruled in favor of the plaintiff, James Good, whose home in Hawaii had been seized by federal marshals without notice or legal proceedings almost five years after he'd completed a prison sentence for drug possession.
Three years after that decision, the Court ruled against a woman whose car was seized by Detroit police after her husband had sex with a prostitute in it without his wife's knowledge. In his majority opinion in Bennis v. Michigan, then-Chief Justice William Rehnquist cited a "long and unbroken line of cases" in which the courts held that ignorance of one's property's use in a crime isn't a defense against its seizure. The first precedent he cited, an admiralty case from 1827, dealt with the seizure of a ship engaged in privateering against the king of Spain—a slightly different set of circumstances than Tina Bennis's plight.
Thomas joined Rehnquist's opinion because of the Court's past rulings, but wrote a separate concurrence that a casual observer could have mistaken for a dissent. "One unaware of the history of forfeiture laws and 200 years of this Court's precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process," he wrote. While he ultimately deferred to the Court's precedents, he also observed the case was "ultimately a reminder that the federal Constitution does not prohibit everything that is intensely undesirable."
And he concluded, presciently, by warning of perils to come. "Improperly used," Thomas observed, "forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice."
Quote from: jimmy olsen on April 03, 2017, 08:46:33 PM
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. I have a hard time seeing Thomas upholding this kind of chicanery.
You worked all day on this and you still spelled "consistent" and "philosophy" wrong.
Lolz
Quote from: jimmy olsen on April 03, 2017, 08:46:33 PM
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?
There was the Muslim headscarf case - Abercrombie & Fitch. Not what I would consider a shining moment for Thomas
Ridiculous
https://twitter.com/EricBoehm87/status/1067864123063640066
QuoteGotta love Gorsuch just straight-up telling the Indiana Solicitor General that he wasted his time coming to DC today
(https://pbs.twimg.com/media/DtHQvtVVYAATYlH?format=jpg&name=orig)
Savage
(https://pbs.twimg.com/media/DtHRbG6V4AAnFaR?format=jpg)
QuoteAnd then Breyer starts literally mocking the government's defense of civil asset forfeiture
(https://pbs.twimg.com/media/DtHSdWIUUAA4oZL?format=jpg&name=orig)
Civil asset forfeiture is such a farce that it took Stephen Breyer no more than a single transcript page to twist the government's lawyer into arguing that speeding tickets could be grounds for forfeiture lololololol
(https://pbs.twimg.com/media/DtHTWNTVAAYZDv8?format=jpg&name=orig)
Jesus. Just don't possibly might have broken a law and you'll be fine.
Losing your car because you are speeding would be ridiculously harsh. But I don't see how it is unconstitutional.
Quote from: Barrister on November 29, 2018, 02:09:18 PM
Losing your car because you are speeding would be ridiculously harsh. But I don't see how it is unconstitutional.
cruel and unusual
Quote from: Admiral Yi on November 29, 2018, 02:17:48 PM
Quote from: Barrister on November 29, 2018, 02:09:18 PM
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.
Quote from: Barrister on November 29, 2018, 02:20:12 PM
Quote from: Admiral Yi on November 29, 2018, 02:17:48 PM
Quote from: Barrister on November 29, 2018, 02:09:18 PM
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.
How is it all proportional to the offense?
Quote from: garbon on November 29, 2018, 02:34:50 PM
Quote from: Barrister on November 29, 2018, 02:20:12 PM
Quote from: Admiral Yi on November 29, 2018, 02:17:48 PM
Quote from: Barrister on November 29, 2018, 02:09:18 PM
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.
How is it all proportional to the offense?
It isn't.
But "proportionality" isn't in the Constitution.
Look - this is something that should be changed legislatively, not by the courts, is all.
This took about 10 seconds. Are you sure you are a lawyer beebs?
QuoteNo 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.
Quote from: Barrister on November 29, 2018, 02:38:01 PM
But "proportionality" isn't in the Constitution.
Pretty sure the case history of the 8th Amendment makes a big deal about severe arbitrary punishments.
Poor Beebs. Smacked with two amendments.
BB - 8th amendment says:
QuoteExcessive 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
Quote from: Barrister on November 29, 2018, 02:20:12 PM
Quote from: Admiral Yi on November 29, 2018, 02:17:48 PM
Quote from: Barrister on November 29, 2018, 02:09:18 PM
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.
:blink:
Quote from: garbon on November 29, 2018, 02:52:46 PM
Poor Beebs. Smacked with two amendments.
The takings one doesn't apply.
Quote from: The Minsky Moment on November 29, 2018, 02:53:42 PM
BB - 8th amendment says:
QuoteExcessive 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.
Quote from: Alcibiades on November 29, 2018, 03:01:19 PM
Quote from: Barrister on November 29, 2018, 02:20:12 PM
Quote from: Admiral Yi on November 29, 2018, 02:17:48 PM
Quote from: Barrister on November 29, 2018, 02:09:18 PM
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.
:blink:
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.
Quote from: Barrister on November 29, 2018, 03:10:20 PM
Quote from: Alcibiades on November 29, 2018, 03:01:19 PM
Quote from: Barrister on November 29, 2018, 02:20:12 PM
Quote from: Admiral Yi on November 29, 2018, 02:17:48 PM
Quote from: Barrister on November 29, 2018, 02:09:18 PM
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.
:blink:
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.
Quote from: dps on November 29, 2018, 03:30:56 PM
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.
Quote from: Berkut on November 29, 2018, 02:42:44 PM
This took about 10 seconds. Are you sure you are a lawyer beebs?
QuoteNo 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"?
I think the property itself is being accused of a crime. It's something really fucking weird. It's completely unjust.
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.
Quote from: The Minsky Moment on November 29, 2018, 04:27:41 PM
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?
Quote from: Razgovory on November 29, 2018, 04:17:26 PM
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.
Quote from: Malthus on November 29, 2018, 04:35:23 PM
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.
Can't you just call it a tax? You are innocent and you get no compensation.
Quote from: Malthus on November 29, 2018, 04:13:42 PM
Quote from: Berkut on November 29, 2018, 02:42:44 PM
This took about 10 seconds. Are you sure you are a lawyer beebs?
QuoteNo 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!
Quote from: The Minsky Moment on November 29, 2018, 04:39:48 PM
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.
Quote from: alfred russel on April 03, 2017, 08:56:34 PM
Quote from: jimmy olsen on April 03, 2017, 08:46:33 PM
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. :(
It takes a while to find that stuff if you can't use search engines.
Quote from: Barrister on November 29, 2018, 04:53:27 PM
Quote from: Malthus on November 29, 2018, 04:13:42 PM
Quote from: Berkut on November 29, 2018, 02:42:44 PM
This took about 10 seconds. Are you sure you are a lawyer beebs?
QuoteNo 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.
Quote from: dps on November 29, 2018, 11:49:29 PM
Quote from: Barrister on November 29, 2018, 04:53:27 PM
Quote from: Malthus on November 29, 2018, 04:13:42 PM
Quote from: Berkut on November 29, 2018, 02:42:44 PM
This took about 10 seconds. Are you sure you are a lawyer beebs?
QuoteNo 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.
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
Freedom from the tyranny of the state :bowler:
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.
Quote from: grumbler on February 20, 2019, 10:11:53 PM
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.
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??
Quote from: The Minsky Moment on February 20, 2019, 10:56:57 PM
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.
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:
QuoteGiven 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.