WASHINGTON ― Supreme Court Justice Clarence Thomas sent a strong signal on Monday about his feelings toward civil asset forfeiture, a controversial law enforcement tool that allows police to seize cash and property from people who haven’t been convicted of a crime ― and in many cases, haven’t even been charged.
In a one-line order, the high court declined to hear a case related to the practice. But in an accompanying statement, Thomas broadly questioned whether civil forfeiture could withstand legal scrutiny.
“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,” wrote Thomas. “I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice.”
Thomas went on to outline his concerns, noting that legal precedent ― most recently in the Supreme Court’s 1996 Bennis v. Michigan decision ― has been based largely on “early statutes” involving property related primarily to piracy and customs.
The evolution of civil forfeiture as a weapon in the drug war has led to dramatic surge in its use over the past 30 years, with law enforcement authorities reaping billions of dollars in cash and goods for their coffers. Although the practice once focused on the seizure of pirate ships and cargo, police now routinely use it to sweep up cash, cars, jewelry and even real estate from people based solely upon the suspicion of criminal activity.
Because this process takes place in civil proceedings, not criminal, property owners aren’t granted rights to due process or to an attorney. And unlike in criminal cases, where defendants must be found guilty beyond a reasonable doubt, police in civil forfeiture cases are often only required to establish weak evidence showing seized property is connected to a crime.
Thomas’ criticism of civil forfeiture comes as efforts to reform the practice have gained momentum at both the state and federal levels, bolstered in part by reports of systemic abuse. In his statement, Thomas cited a 2015 study by the Institute for Justice, a libertarian public interest law firm, which outlines the enormous financial incentives for police to seize property.
Critics of civil asset forfeiture, including the Institute for Justice, say weak state laws and poor oversight have given rise to a system of “policing for profit,” which leads law enforcement to prioritize activities that bring in money over those advancing public safety.
As Thomas explained, abuses do not affect all people equally.
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” Thomas wrote. “Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
Thomas’ comments may suggest that the court would be receptive to a future legal challenge.
“This is a significant opinion by one of the justices of the Supreme Court questioning the constitutional validity of civil forfeiture,” Darpana Sheth, senior attorney with the Institute for Justice, told The Huffington Post. “He’s strongly signaling his skepticism and his belief that civil forfeiture is unconstitutional, and he pretty much outlines the blueprint for why the earlier court decisions can’t be squared.”
Sheth noted that Thomas appears more skeptical than he did in 1996, when he sided with the majority in ruling that “innocent owners” do not have a right to due process in civil forfeiture cases.
“I think we can definitely count Justice Thomas in a solid vote questioning the constitutionality of civil forfeiture,” Sheth said.
Now, it’s a matter of finding a case that the Supreme Court will take. The Institute for Justice is involved in a lawsuit challenging an alleged “machine-like forfeiture scheme” in Philadelphia, where authorities took in more than $64 million from 2002 to 2012. The Philadelphia District Attorney’s office used $25 million of that money to pay salaries of the prosecutors who brought the forfeiture actions.
“Right now, that’s down in the district court, and hopefully it will make its way up,” said Sheth. “But litigation is slow.”