Supreme Court Sees Criminal Asset Forfeiture Can Be Abused Too; Almost Does Something About It
from the have-a-bandaid dept
Recently, the Supreme Court passed on a case that could have seen it address the highly-problematic civil asset forfeiture issue head on. In that case, cops seized $201,000 (and a bill of sale for a home) from two people during a traffic stop. Despite having no evidence of criminal activity, the cops kept the $201,000 and claimed it was the result of narcotics trafficking. And, despite this claim, law enforcement never arrested the couple it took the money from and charges were never brought.
The Supreme Court refused to touch the appeal, choosing to let the lower courts' rulings stand (and the officers keep the $201,000). Justice Clarence Thomas had a problem with the Supreme Court letting this case slide, writing that the civil asset forfeiture system is easily-abused and provides the worst of incentives.
I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.
First, historical forfeiture laws were narrower in most respects than modern ones.... 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.... These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods)....
Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings... Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt....
This alone doesn't do anything useful, other than signal at least one justice wants to take a swing at civil asset forfeiture. The Supreme Court, however, did choose to examine another form of forfeiture, this one related to actual criminal charges and convictions.
The question before the court was this: is is legally-acceptable to attempt to recover illicitly-obtained profits from someone who didn't directly profit from the illicit activity? The government (of course) argued "yes." The court isn't so sure. Here's the background, from the Court's synopsis of its opinion [PDF]:
Terry Honeycutt managed sales and inventory for a Tennessee hardware store owned by his brother, Tony Honeycutt. After they were indicted for federal drug crimes including conspiracy to distribute a product used in methamphetamine production, the Government sought judgments against each brother in the amount of $269,751.98 pursuant to the Comprehensive Forfeiture Act of 1984, which mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes, 21 U. S. C. §853(a)(1). Tony pleaded guilty and agreed to forfeit $200,000. Terry went to trial and was convicted. Despite conceding that Terry had no controlling interest in the store and did not stand to benefit personally from the sales of the product, the Government asked the District Court to hold him jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the outstanding conspiracy profits.
The district court said Terry was just a salaried employee who did not directly benefit from the profits of the sale of an item used in crystal meth manufacturing. The appeals court decided Terry was just as culpable as the store's owner. The Supreme Court sides with the district court.
Because forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, that provision does not permit forfeiture with regard to Terry Honeycutt, who had no ownership interest in his brother’s store and did not personally benefit from the illegal sales.
This is a solid determination, as far as it goes. This only deals with criminal asset forfeiture, which isn't abused nearly as much as the civil side, thanks to the government actually having to build a solid criminal case before it can permanently acquire other people's property.
But it's also a question of semantics. As Scott Greenfield points out in this post, the opinion focuses on the wording of the statute as applied to this particular case, which doesn't exactly make this blanket coverage for all similar cases. The Court presents a hypothetical situation that makes it appear it's headed down the blanket coverage path…
An example is instructive. Suppose a farmer masterminds a scheme to grow, harvest, and distribute marijuana on local college campuses. The mastermind recruits a college student to deliver packages and pays the student $300 each month from the distribution proceeds for his services. In one year, the mastermind earns $3 million.The student, meanwhile, earns $3,600. If joint and several liability applied, the student would face a forfeiture judgment for the entire amount of the conspiracy’s proceeds: $3 million. The student would be bound by that judgment even though he never personally acquired any proceeds beyond the $3,600. This case requires determination whether this form of liability is permitted under§853(a)(1). The Court holds that it is not.
As Greenfield points out, this would shift jurisprudence to substantially alter the way the government seeks restitution through criminal asset forfeiture. But the Court doesn't limit itself to the contours of its own hypothetical. Instead, it spends too much time circling the semantic drain.
Despite the example given, which has broad if not universal application limiting the culpability and liability to the actual conduct, the actual profit, perhaps even the actual knowledge of that college student who got $300 per month to play the mule, the holding relies primarily on the word “obtained.” Change the word and the limiting concept disappears, even though the example of its unfairness, its inapplicability, remains every bit as accurate.
The problem is the government still wants to use "joint and several liability" in criminal prosecutions, even if the facts don't show any reason to do this. The opinion here focuses on the word "obtained," pointing out there's not a dictionary out there that supports the government's definition in the context of criminal forfeiture. And yet, the practice will go on the way it has for years because of the lack of a blanket interpretation by the Supreme Court. This leaves it up to lower courts to determine the extent of shared liability on a case-by-case basis. And when things are handled this way, it forces the hypothetical college student with $300 to expend far more than that simply to try to avoid being saddled with millions of dollars of restitution as the result of a criminal conspiracy.
Where the court could have clarified, it chose not to. It will hopefully serve as a deterrent to such forfeiture abuse in the future, but its application is narrow, limited, and subject to multiple interpretations. Here's Greenfield to sum it up:
So is it the concept of banging the kid for the boss’ conduct and profit the problem, or is it the word “obtained” in the statute? Is joint and several liability a wrong in itself, or is it only wrong this time? Or is it a misbegotten concept entirely, which should never apply to hold a defendant to greater culpability and liability then the facts, the conduct, warrant? The questions need answers, but the opinion fails to say.
Terry Honeycutt will emerge from his 60-month sentence without a future burden of paying off the forfeited sum. Whether anyone else will be relieved of the joint and several burden remains to be seen.
So, in two cases, the Court has failed to budge the needle on forfeiture. Civil asset forfeiture received nothing more than some judicial tongue-lashing in lieu of certification and criminal asset forfeiture can continue to be used to hold those who don't profit directly from criminal activity responsible for any dollar amount the government can show is likely ill-gotten gains.
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Filed Under: asset forfeiture, criminal asset forfeiture, scotus, supreme court
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A cheap pass on an easy case
Despite having no evidence of criminal activity, the cops kept the $201,000 and claimed it was the result of narcotics trafficking. And, despite this claim, law enforcement never arrested the couple it took the money from and charges were never brought.
This should have been a trivial case before them, something they could have wrapped up in an afternoon and made the law drastically saner at the same time. All it would have taken would be seven simple words:
No conviction of the owner = No forfeiture.
If the police and/or prosecution doesn't have enough evidence to secure a conviction, then they damn well don't have enough to steal someone's property from them by asserting the property as guilty. Bad enough the disastrous idea was ever put forth, the fact that it is still in place, and is still costing people dearly is a travesty of the legal system.
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Re: A cheap pass on an easy case
And of course you have the original reason the civil asset forfeiture was introduced: drugs. And just like any other thing introduced to tackle a problem without law enforcement having to try hard at their job it went down the abuse slippery slope quite fast. Where have I seen it happen again? Oh, right. Terrorism.
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Re: Re: A cheap pass on an easy case
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Re: Re: A cheap pass on an easy case
I would use the word "justification" rather than "reason", but point well-made nonetheless.
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Re: A cheap pass on an easy case
Seriously, read it again; they took the receipt for the sale of a house; that's evidence in favor of the money's 'innocence' right there.
If that bill of sale had been presented in court, the forfeiture case would be guaranteed sunk. I am 100% certain that the officers involved were fully aware that no drugs were involved with this cash, and they still stole the money.
I wonder, if the courts are unwilling to prosecute officers for these blatant crimes in uniform, what can ordinary people do to achieve justice?
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Re: Re: A cheap pass on an easy case
The Supreme Court has failed in their jobs in this, and this is serious enough that all of the justices should be hung by the neck until dead.
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Re: A cheap pass on an easy case
And Justice Thomas murdered five and a half pages saying that that's what he would say if he could. Sadly, he realized he couldn't:
The court can't rule on appeal on issues that no prior court has addressed, so they have to wait until another case makes it way up to them, one that argues this from the start.
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Re: Re: A cheap pass on an easy case
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I think that's clearly what Thomas is pushing for here: he's signaling that some defense attorney somewhere should please, please raise this issue so that he can rule on it.
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Re: Re: Re: Re: A cheap pass on an easy case
My estimation of silent Clarence has gone up considerably.
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Scalia was bound to overshadow him, and everyone around him; whatever your thoughts on the man (and I'm not a fan) he was one hell of a showman. That he and Thomas usually agreed doesn't necessarily mean Thomas was following his lead, just that they subscribed to similar philosophies.
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travesty of the legal system
How dumb do you have to be... NOT to see that our courts are corrupt --- all the way up to SCOTUS.
Because the legal profession is itself corrupt. The ABA and honest lawyers should be marching en masse to Capitol Hill in protest of these horrific government abuses -- but none of them are bothered by this stuff.
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Re: travesty of the legal system
Nobody actually cares that this is all corrupt as all get out. In fact they want it, provided that corruption is serving their political ideology.
Democrat voters do not care if their candidates are corrupt and are okay for them to use corrupt ends to make changes they like.
Republican voters do not care of their candidates are corrupt and are okay for them to use corrupt ends to make changes they like.
Parties are the same, they produce rotten fruit, but people think they are different because one is horse shit while the other is bull shit.
Next election, more of the same will be voted in, while they both simultaneously cry about corruption on the "other" side.
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Re: Re: travesty of the legal system
Nobody? ... Wrong. All it takes is one person. I care that corruption seems to be more important to politicians than anything else.
The two parties are similar in that they both support the oligarchy, however - one party leans left (or at least used to) while the other party leans right (way further than previously) which means they are not the same.
Agreed, not much will change with our silly primary processes, gerrymandered districts and disenfranchisement. But even if those problems were corrected, many disillusioned people out there simply do not vote because they feel it does not matter to them - their lives will not change as a result no matter who wins. This is a huge problem for the long term survival of this country.
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Re: Re: Re: travesty of the legal system
I would add corporate lobbying, FPTP elections, and the electoral college to the list too.
Though I don't expect Chip is in favor of campaign finance regulations.
Course, while those things are of course pertinent to things like civil asset forfeiture laws, they're not directly pertinent to judges with lifetime appointments. It's not that judges can't be corrupt, of course, but if they're not running for re-election that cuts off one of the major avenues for conflicts of interest.
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Re: Re: Re: Re: travesty of the legal system
All easily corrupt and people voted for them in droves.
Sorry, one person is not enough, they can only push a little on the ball in hopes to get it rolling. It takes an entire electorate to defeat this problem and right now the electorate has been very successfully divided into enemy factions that think they should be hating their neighbors instead of working with them to first get rid of corruption. There is no reason for politicians to put their corruption in check because we citizens are not demanding it through the election process.
"The two parties are similar in that they both support the oligarchy, however - one party leans left (or at least used to) while the other party leans right (way further than previously) which means they are not the same."
I call that a distinction without a difference. They are so bad, that it no longer matters because both will result in the destruction of this nation.
The worst hell a democrat voter can experience is the FULL realization of their political wants and desires.
The worst hell a republican voter can experience is the FULL realization of their political wants and desires.
"Agreed, not much will change with our silly primary processes, gerrymandered districts and disenfranchisement."
Sure that does not help in the least, but that is why if people first say... NO to the corruption then the problem will solve. I would rather vote in a person that I did not agree with politically than to vote in a corrupt jack-hole that I did agree with.
"I would add corporate lobbying, FPTP elections, and the electoral college to the list too."
The lobby is NOT the problem, never will be. Trying to fight it is ignorance and you might as well go piss up a rope. The problem is all of the politicians giving them time of day. If you cannot control your PolyTick, then you can do nothing to stop them from corruption be it in the light of day or in a secret conclave. You just vote them out and make it clear that the voters thought you spent too much time sucking lobbyist schlong.
In all cases, you cannot remove the responsibility of the voter from this process, which is why it is so easily corrupted, because it is easy to lie to, sucker, and corrupt the commoner. They are just too lazy to really care that much.
I would prefer that the electoral college be abolished and the Senators of your state vote for President much the same as it was originally.
the people never should have been voting for president to begin with and neither do they have a constitutional right to elect a president either... and for good reason!
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It's enough to make the claim that "nobody actually cares" a lie.
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That's a fair point and well-argued, but I don't entirely agree.
I do oppose the two-party system we've got now, and vote third-party much of the time. But sometimes there's no third-party candidate on the ballot, or the only third-party candidate is a ding-dong. (Last year my options for Senate were John McCain (R), Ann Kirkpatrick (D), and Gary Swing (G). I'd have happily voted third-party, but Swing is a frickin' nut.)
There are structural issues at work here. There's a reason I keep bringing up FPTP: it inevitably devolves into a two-party system; with no majority required and no runoff system, it's all but a mathematical certainty. America hasn't always had the same two parties, but it's always had two parties, and I don't think it's possible for that to change without changing how votes get cast. Every time a third party has become viable in the past, it's simply displaced a previous major party; the Federalists were replaced by the Whigs, and then the Whigs were replaced by the Republicans. I don't think you can meaningfully reform the two-party system without replacing FPTP with something else.
That's fortune-cookie stuff, dude. It sounds deep but it doesn't actually mean anything. You could substitute any noun for "democrat[ic] voter" or "republican voter" and it would be just as applicable and profound.
It also implies that every Democratic or Republican voter has the same political wants and desires, which is just silly. There's disagreement among the politicians themselves about just what the parties should stand for, and just because a voter votes for one party or the other doesn't mean he supports the entire party platform. Even outside a two-party system, it's a very rare thing indeed to find a candidate who you agree with on everything.
I don't disagree; voters certainly have responsibility. But they don't have sole responsibility; there are quite a lot of factors that voters have no direct control over. The best way to reform is to address those factors, not just to shout "PERSONAL RESPONSIBILITY!"
Agreed.
Wait what?
First of all, that's not "the same as it was originally". The President was never elected by the Senate. That's a parliamentary democracy; we don't have one of those. We've always had an electoral college, on back to 1788.
Senators used to be appointed by state legislatures; is that what you're thinking of?
Second, while there are advantages to parliamentary democracies, I don't follow your logic that it would result in less partisan corruption if the President was elected by the Senate. I'm not sure if by "the Senators of your state" you mean the US Senate or the 50 state senates, but either way, you're just replacing one form of indirect, not-quite-representative election with another.
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Re: A cheap pass on an easy case
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Re: A cheap pass on an easy case
Civil forfeiture was intended to be used primarily in cases where the actual defendant was unable to have charges brought against them (and thus unable to be convicted). Those laws were put in place so we could have some recourse against criminal actors who are wealthy/smart/foreign enough to put a few layers of patsies between themselves and their criminal proceeds.
That doesn't mean it isn't being horribly abused, and should certainly be fixed. It just means the answer to complex legal issues can rarely be resolved with a single sentence.
You also don't know the facts of this precise case. They are laid out as if it's a slam-dunk theft, but issues are rarely that cut-and-dry. If the purchaser of the house worked at a mcdonalds and has tax returns stating he makes less than $20k a year, they may be pretty sure that the $201,000 cash he paid came from some illicit source, even if they didn't have ironclad proof for a conviction. I don't know what the other facts around this case were, but certainly neither do you.
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Re: Re: A cheap pass on an easy case
There is a difference between complete knowledge of absolutely every detail and just making crap up, like you did.
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Re: A cheap pass on an easy case
Exactly! This should've been the case. If there was no conviction, and in fact there were even no charges filed, then there is no cause to conduct forfeiture.
Unfortunately it's not just criminal asset forfeiture that can be abused in the system. From law enforcement to trial to sentencing, everything is susceptible to go against you to a point that having a competent lawyer has become a necessity.
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This only deals with criminal asset forfeiture, which isn't abused nearly as much as the civil side, thanks to the government actually having to build a solid criminal case before it can permanently acquire other people's property.
Despite having no evidence of criminal activity, the cops kept the $201,000 and claimed it was the result of narcotics trafficking. And, despite this claim, law enforcement never arrested the couple it took the money from and charges were never brought.
I guess the lesson is that when pulled over by a LEO, one should always try to be as annoying as possible: not 'get shot in the face' annoying(1), just 'get 'em to trump up charges and throw the book at you out of spite' annoying. That way you might be lucky enough to be arrested, tried, and exonerated... and get your property back.
Kinda sad when getting arrested and prosecuted is better than being let go without charges.
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You don't have to be annoying to be shot in the face. Technically if you want to get through a LEO interaction with just minor cavity exams you have to act normally. But not "get shot in the face' normal (ie: don't be black, Latin or anything different than a white christian American).
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Oh, sorry, don't let the facts get in the way.
https://www.washingtonpost.com/news/post-nation/wp/2016/07/11/arent-more-white-people-than-black -people-killed-by-police-yes-but-no/?utm_term=.db7465d42aac
Yes, you are at a higher risk of being shot as a minority (per that article), but there are reasons for that(not mentioned in article). Minorities escalate with police more, have chips on their shoulders, and generally try to cause an issue when dealing with law enforcement. The culture in general views cops as opposition immediately setting tension higher.
Does this make their dispositions fair? No, but they are not doing themselves any favors either. What we have here are a bunch of agitators causing trouble in the wrong way to correct what they "feel" is a wrong by law enforcement. And law enforcement is definitely using their positions of authority to agitate agitators for what they "feel" is wrong about their culture.
Both sides are wrong, and both sides use their "feelings" over facts and analysis to justify their bullshit viewpoints on the situation.
Heck, since minorities produce an overwhelmingly disproportionate amount of crime you could also say that police do not shoot ENOUGH of them compared to other races when discussing just the statistics, but we already know how statistics can be played out to any favor with the right um... approach.
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The truth is racist.
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Then ban it! There is no room in the world for racism!
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Are these numbers relative or are they not statistically compatible?
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man those roses smell good! It good though... I still got my party to vote for, unlike those other schmucks that keep ruining it for everyone!
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Re:
*opens a can of paint chips while theme music plays*
Every nation eats the paint cChips it deserves!
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So... yea, it really is ALL about regulation. That is the nature of Government.
So small government principles are about less regulation or anti-regulation, while pro-regulation is about large and controlling government.
last I checked most pro-regulation people are bitching about the law, but keep asking for more. sounds like a recipe for self destruction.
Reminds me of Data in Star Trek Generations when he got his emotion chip in and Guinan was giving him a drink. Data shudders and Guinan asks how it was. Data Responds that it was revolting. Guinan asks if Data would like more and Data says Please!
That is the current state of affairs, both the democrats and republicans are asking for the very things they hate because they are too busy fighting each other to realize that they are only working to defeat themselves.
Sad really!
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That's what happens when you turn politics into a team sport. "My team, right or wrong! GO, TEAM, GO!"
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Every nation eatst the Paint chips it Deserves!
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I assume this should be "banging up"? Was this sentence written like that in the original or...
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Government court sides with it's own government...
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rule of thumb
It should only be allowed, and even then with constraints and actual sure process (starting with presumption of innocence), in cases where suing the owner is impossible. (As it was intended at the beginning.)
If the goods were directly taken from their owner, it means the owner was present and could have been arrested on the spot. This kind of case is a clear example of using forfeiture for the sole purpose of bypassing due process. An abuse of a law that severely lacks safeguards.
I can't understand how this was not judge unconstitutional years ago.
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