March 8, 2017 (Fault Lines)—The Supreme Court recently denied cert in one of those classic cases: good facts mixed with incomplete lawyering. But in a stirring dissent, Justice Thomas may have provided the roadmap to a decision that could rock the foundations of our august kleptocracy.
Police pulled James Leonard over at 3 in the morning for speeding and following too closely. For some reason, this led to a discussion of how much money he was carrying with him. He said $800. His passenger said $1000. Police asked the passenger for consent to search the car, and she allegedly gave it, though the encounter doesn’t seem to have been filmed.
Police found a safe in the trunk of the car. Once again, this was unfilmed, but it is possible that officers were briefly blinded as their pupils converted to novelty-sized dollar signs. Probably panting with excitement, the officers asked how much money was in the safe. The two again gave inconsistent responses, with Leonard saying that the safe belonged to his mother and contained money, while the passenger initially denied there was anything in it.
The officers haggled back and forth over the amount. Ten thousand. A hundred thousand. Then the question worth a million bucks, “How much of this money is related to the sale of narcotics?” According to the officer, the passenger then said “not most of it.” One of those mysterious unfilmed admissions of guilt one sometimes sees, or more accurately, hears about from an officer.
Leonard called his mother, Lisa, who told the officer that the money in the safe was hers and denied permission to open it. The officer got a search warrant and found $201,000 and a bill of sale for a Pennsylvania home. You might think that one would explain the other, but the officer was trained in drug trafficking. He knew that this money was especially suspicious and seizable:
In my experience, carrying large amounts of U.S. currency is commonly associated with the illegal narcotics trade. In my experience, [U.S.] Highway 59 is a main thoroughfare for the transport of U.S. currency and narcotics in the illegal drug trade.
In my experience, an officer will claim to have experienced a lot of things when two hundred grand is on the line. If he had to claim to know the exact taste of uncooked pig rectum to seize the assets, you’d better believe his training would cover it.
The government seized the cash, and Leonard began the arduous process of trying to win it back. Lisa presented evidence that she was an IRS agent who had begun taking money out of the bank and keeping it as cash after the Great Recession. She provided evidence that the cash was from the sale of her home, and that she intended to use it to buy more real estate. Horsefeathers, the trial court said, Leonard has some drug convictions and has discussed selling narcotics with a confidential informant. Rather than taking the obvious lesson from this (Leonard isn’t a particularly crafty drug dealer and probably didn’t make 200 grand in the biz) the court figured he must have had a sudden run of business savvy. Good enough for government work.
Leonard had no luck on appeal, and ultimately, no luck petitioning for cert to the United States Supreme Court. While his facts were good, his issue was bad. Justice Thomas didn’t want a case to discuss the narrow issue of whether this was enough evidence to deprive Leonard’s mother of the money she’d earned. And the court couldn’t address the new due process arguments that Leonard wanted to raise on appeal. So they had to punt.
But Justice Thomas wanted to provide a guide to a better case the next time. And he began by discussing the basic theory underpinning civil forfeiture:
When a state wishes to punish one of its citizens, it ordinarily proceeds against the defendant personally (known as “in personam”), and in many cases it must provide the defendant with full criminal procedural protections. Nevertheless, for reasons discussed below, this Court permits prosecutors seeking forfeiture to proceed against the property (known as “in rem”) and to do so civilly.
Note that Justice Thomas starts right away with a premise that many prosecutors and law enforcement officials would reject—that civil forfeiture is about punishment. Contrast that with this Rehnquist opinion from 1996, US v. Ursery:
In rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause. [emphasis added]
Thomas concurred in that opinion, although for typically originalist reasons: he believed that Double Jeopardy only protected against multiple prosecutions, not multiple punishments.
But if Thomas starts from the premise that civil forfeiture is punishment, how can we justify a scheme that takes property without the full constitutional protections of a criminal trial? Thomas explains:
The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding.
In other words, the current forfeiture regime is justified by history. If we could historically seize assets without naming the owners as criminals, we can do so now. But Thomas points out that historically, forfeiture laws were a lot narrower than the ones we see now. The fledgling Republic wasn’t choosing between prosecuting a person or his stuff, they were choosing between prosecuting his stuff and suffering continued piracy as the owner stayed safely out of reach:
Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts.
More than that, they often extended far more protections to the accused than we see today, including the duty to prove guilt beyond a reasonable doubt.
Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).
By claiming a historical precedent, then ignoring it, the government has been able to turn civil forfeiture into a huge revenue generator. And that incentive, mixed with minimal due process protections, has turned a band-aid for budget shortfalls into a recipe for abuse.
It’s clear what Justice Thomas intends with this dissent. To be cited in future cases. To lead some other smart lawyer to claim that a forfeiture scheme violates his client’s due process rights by failing to afford him protections more like those of a criminal trial. Just as Justice Breyer has spent the past few years trying to set up the pins to knock down the death penalty, Thomas is trying to get the elements together to allow a sweeping new rule on civil forfeiture.
We may one day live in a country where a citizen’s life, liberty, and property may not be seized without the full due process of law. Though you’d better believe the government will fight tooth and nail to prevent it. After all, they’re comfortable prosecuting our stuff. But they’re a hell of a lot less comfortable risking theirs.