By Kevin D. Williamson
Sunday, June 25, 2017
Clarence Thomas is famously taciturn on the bench. But
his few words carry a great deal of weight.
Though the matter has not yet come before the Supreme
Court, Justice Thomas is very much at the center of a federal case with a name
that sounds like it ought to have come from a William Gaddis novel: United States v. Seventeen Thousand Nine
Hundred Dollars in United States Currency. The case has the potential to
help rein in one of the most abused powers enjoyed by American government:
asset forfeiture.
The case involves a New York couple, Angela Rodriguez and
Joyce Copeland, who lost the above-mentioned $17,900 to police in a case in
which no charges were ever filed against them. They sued for recovery of their
money, and — incredibly — a federal court found that they lacked standing to
sue for possession of their own assets. The D.C. Circuit Court sees things
differently and has ruled in favor of allowing Rodriguez and Copeland to at
least have their day in court and attempt to reclaim their money.
Current asset-forfeiture practice, like much that is
wrong with U.S. law enforcement, has its roots in the so-called war on drugs.
The practice of seizing assets is ancient: It dates back at least to
17th-century maritime law, under which ships illegally transporting goods would
be seized, along with the contraband inside. Asset forfeiture was used against
bootleggers during Prohibition, but it really came into its own in the Reagan
era, when the Comprehensive Crime Control Act of 1984 empowered federal and
local law-enforcement agencies to take property from drug kingpins for their
own use. The sudden, unlikely inventory of exotic cars and yachts possessed by
law-enforcement agencies inspired that great cultural document of the 1980s: Miami Vice.
Asset forfeiture creates an obvious conflict of interest
for law-enforcement agencies: Because the proceeds go into their budgets, they
have a vested interest in maximizing the use of forfeiture in their
jurisdictions. You will be less than surprised to learn that this has produced
some serious abuses, and the law-enforcement tool intended to be used against
centimillionaire cartel bosses inevitably ends up being used to harass — and
loot — nobodies in East Funky. That is the nature of such innovations in
government. It is why the city won’t fix your potholes but the
revenue-producing red-light camera is never on the fritz for long.
(Here’s a prediction: In a fashion similar to that of the
weapons in the war on drugs, the tools created for the so-called war on terror
are going to present acute problems for Americans in 20 years — far beyond what
they already have — as their metastatic spread throughout government
continues.)
The spreading use of forfeiture has of course drawn
resistance amid concerns about due process and outright abuse. The Supreme
Court declined to hear a high-profile forfeiture case, Leonard v. Texas, for procedural reasons. But Justice Thomas issued
a statement on the case that was both erudite and blistering. It was also very
humane: Justice Thomas has a keen interest in the literary details as well as
the legal ones. He wrote:
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. According to one nationally
publicized report, for example, police in the town of Tenaha, Texas, regularly
seized the property of out-of-town drivers passing through and collaborated
with the district attorney to coerce them into signing waivers of their
property rights. In one case, local officials threatened to file
unsubstantiated felony charges against a Latino driver and his girlfriend and
to place their children in foster care unless they signed a waiver. In another,
they seized a black plant worker’s car and all his property (including cash he
planned to use for dental work), jailed him for a night, forced him to sign
away his property, and then released him on the side of the road without a
phone or money. He was forced to walk to a Wal-Mart, where he borrowed a
stranger’s phone to call his mother, who had to rent a car to pick him up.
These forfeiture operations
frequently target the poor and other groups least able to defend their
interests in forfeiture proceedings. 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.
The issue, Justice Thomas wrote, is “whether modern
civil-forfeiture statutes can be squared with the Due Process Clause and our
Nation’s history.” Because these asset-forfeiture proceedings are civil rather
than criminal actions, their targets do not enjoy the ordinary procedural
protections that they would if they were charged with crimes, the most
important of those being jury trials and the heightened standard of evidence
demanded in criminal proceedings. Forfeiture cases in effect allow police to
punish people for committing crimes without having to go to the trouble of
proving that they have committed those crimes. And the fact that the police get
to keep the money does not exactly discourage them.
The fact that the practice is a longstanding one does not
mean that it is a constitutional one. We are not seizing the unflagged vessels
of smugglers at colonial ports; and even if we were, it is not clear, as
Justice Thomas notes, that those seizures were permitted to advance as purely
civil matters unconnected to any underlying criminal charge. Due process does
not have a great many friends just now: Congressional Democrats have made a
campaign out of revoking the civil rights of Americans put on secret government
terrorism watch lists, even if those people have never been charged with, much
less convicted of, any actual crime. These episodes are a constant reminder
that what conservatives intend to conserve, and what progressives intend to
progress away from, is Anglo-American liberalism, with its individual rights,
procedural justice, and rule of law.
Leonard wasn’t
the case that will be used to sort out forfeiture, but Justice Thomas’s Leonard statement was repeatedly cited
in the ruling for the plaintiffs in United
States v. Seventeen Thousand Nine Hundred Dollars in United States Currency.
Justice Thomas may not say very much on the bench, but he has made it clear
that when forfeiture finally does come before the nation’s highest court, at
least one gimlet-eyed justice is going to be skeptical.
No comments:
Post a Comment