Supreme Court Will Decide If Civil Forfeiture Is Unconstitutional, Violates The Eighth Amendment

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I find it amazing how everyone seems to be against civil assets forfeiture, yet it persists. Its existence takes the quote “Democracy is direct self-government, over all the people, by all the people, for all the people.” and wipes ass with it.

If a bureaucracy becomes to complex, and or corrupt, it therefore becomes hard to have accountability. Doubly so if the organization is powerful and necessary like Law Enforcement.

The law of bureaucratic complexity leading to inefficiency can be even more powerful when an organization is arrogant, feared, and entitled, Law Enforcement again checks the boxes.

I better be careful how many civil servants there are and what powers I grant to them.

 

[Neph]

Can someone explain this to me? My country is lacking freedom so I don't think we have these laws, I'm not sure what they mean

 

[spamking]

Going to be pretty funny watching police departments scramble to make up budget shortfalls.

Just be prepared for more speeding tickets or illegal lane change tickets . . .

 

[Makani]

Just be prepared for more speeding tickets or illegal lane change tickets . . .

"You've got a tail light out."
"Where?"
*smash*
"Right there."

 

[spamking]

"You've got a tail light out."
"Where?"
*smash*
"Right there."

Hopefully it won't get quite that bad . . . but I guess you never know.

 

[High Altitude]

Can someone explain this to me? My country is lacking freedom so I don't think we have these laws, I'm not sure what they mean

Basically if law enforcement believes the money (or any asset) came from illegal activity, they can confiscate the money. At first they would take money from people who where convicted or arrested, but it has gotten completely out of control. Cops now are pulling people over on the streets and highways and if they find you are carrying a large amount of cash, they just take it and it is almost impossible to get it back.

There have been cases of people going to buy a vehicle who have gotten their cash taken from them by the cops.

I can’t think of anything more unamerican and I am amazed it is still legal.

 

[JamesRussler]

Federalism be damned, huh?

Madison and Jefferson are spinning in their graves.

I understand the desire to shaft wrongdoers. For example, if some pedo gets rich selling kiddy porn on the internet, I definitely don't want to see him keeping all that money. The problem is civil forfeiture provides a huge profit motive to the government (rather than compensating or rectify harm to victims), and it vastly expands the power of the government to ruin people whom it decides to target. The government should not have a profit incentive to incarcerate people, and it should not have anymore power than it already has to pursue criminals. We see this all the time with the Fourth Amendment – we want to get the bad guys, so we allow our rights to be chipped away.

Civil asset forfeiture (CAF) proceedings, if allowed at all, should be extremely difficult to commence, limited in scope, and very difficult for the government to prevail in. Here are some of my ideas:

• First, CAF shouldn't even commence until the conviction is final and appeals are exhausted. That means no seizing assets and holding them pending conviction. Yes, in some cases, that means criminals get to drive their Bentleys and live in their houses during trial. So be it. We're protecting the presumption of innocence.
• Second, CAF should be limited to cases where criminal activity provided a massive windfall to the criminal (we're talking millions), or where the criminal's income was solely derived from criminal activity.
• Third, CAF should be limited to crimes with identifiable victims. This means that large-scale drug dealers are pretty much off the hook, along with all other sellers of victimless contraband. I realize this means crime may be profitable in some cases. But victimless crimes generally shouldn't be crimes in the first place, and there's no reason that money should go to the government instead. If a victimless crime is so important to prosecute, make the jail sentence commensurate, and that should be enough to deter others from committing that same crime in the future. If the crime has actual victims, all proceeds from the crime should go to the victim, not the government.
• Fourth, the government's burden should be at least as high as for the crime: reasonable doubt. That is, the government must show beyond reasonable doubt that the forfeitable assets are solely derived from criminal activity.

That's a pretty good start. Like I said above, I'd like to see CAF used against child porn distributors, as well as human traffickers, terrorists, white collar fraudsters, and professional thieves. Beyond that, I think we're gonna have to settle with throwing the bad guys in jail.

 

[Edgy Brah]

Civil forfeiture is fucked. Here's so other examples in here, the pot one is sick.

 

[sideboob]

The first time I heard of civil forfeiture being abused, I had to Google it because it didn't seem real. I can't imagine having your shit stolen without any type of related conviction.

It's absurd, and here's John Oliver's take on it, FWIW

 

[waiguoren]

I understand the desire to shaft wrongdoers. For example, if some pedo gets rich selling kiddy porn on the internet, I definitely don't want to see him keeping all that money. The problem is civil forfeiture provides a huge profit motive to the government (rather than compensating or rectify harm to victims), and it vastly expands the power of the government to ruin people whom it decides to target. The government should not have a profit incentive to incarcerate people, and it should not have anymore power than it already has to pursue criminals. We see this all the time with the Fourth Amendment – we want to get the bad guys, so we allow our rights to be chipped away.

Civil asset forfeiture (CAF) proceedings, if allowed at all, should be extremely difficult to commence, limited in scope, and very difficult for the government to prevail in. Here are some of my ideas:

• First, CAF shouldn't even commence until the conviction is final and appeals are exhausted. That means no seizing assets and holding them pending conviction. Yes, in some cases, that means criminals get to drive their Bentleys and live in their houses during trial. So be it. We're protecting the presumption of innocence.
• Second, CAF should be limited to cases where criminal activity provided a massive windfall to the criminal (we're talking millions), or where the criminal's income was solely derived from criminal activity.
• Third, CAF should be limited to crimes with identifiable victims. This means that large-scale drug dealers are pretty much off the hook, along with all other sellers of victimless contraband. I realize this means crime may be profitable in some cases. But victimless crimes generally shouldn't be crimes in the first place, and there's no reason that money should go to the government instead. If a victimless crime is so important to prosecute, make the jail sentence commensurate, and that should be enough to deter others from committing that same crime in the future. If the crime has actual victims, all proceeds from the crime should go to the victim, not the government.
• Fourth, the government's burden should be at least as high as for the crime: reasonable doubt. That is, the government must show beyond reasonable doubt that the forfeitable assets are solely derived from criminal activity.

That's a pretty good start. Like I said above, I'd like to see CAF used against child porn distributors, as well as human traffickers, terrorists, white collar fraudsters, and professional thieves. Beyond that, I think we're gonna have to settle with throwing the bad guys in jail.

I hate CAF as much as you. My point is that believers in federalism (of which I thought you were one) should not be supporting the incorporation of the excessive fines clause of the Eighth Amendment. In other words, in lieu of a constitutional amendment, the federal government can have nothing to say about the fines that a state can charge people. The moment we become consequentialists is the moment we relinquish our principles.

 

[JamesRussler]

I hate CAF as much as you. My point is that believers in federalism (of which I thought you were one) should not be supporting the incorporation of the excessive fines clause of the Eighth Amendment. In other words, in lieu of a constitutional amendment, the federal government can have nothing to say about the fines that a state can charge people. The moment we become consequentialists is the moment we relinquish our principles.

I don't know what I am exactly, but I definitely wouldn't call myself a federalist. IMO, any "right" that isn't personally held and incorporated as against state governments isn't a right at all. I mean, c'mon – what good is a restraint on the federal government if it doesn't restrain the states? For most people, their state government is just as bothersome as the federal government; just another dick trying to fuck them in the ass. Out here in CA, our local government is actually worse than the feds. They are straight up working against us! Under a "federalism" principle, our Constitution would basically protect California's right to rob people rather than protecting people from being robbed by California. No thanks to that.

 

[waiguoren]

I don't know what I am exactly, but I definitely wouldn't call myself a federalist. IMO, any "right" that isn't personally held and incorporated as against state governments isn't a right at all. I mean, c'mon – what good is a restraint on the federal government if it doesn't restrain the states? For most people, their state government is just as bothersome as the federal government; just another dick trying to fuck them in the ass. Out here in CA, our local government is actually worse than the feds. They are straight up working against us! Under a "federalism" principle, our Constitution would basically protect California's right to rob people rather than protecting people from being robbed by California. No thanks to that.

Our Constitution was written to restrain the federal government broadly and restrain the states narrowly. Read the 10th Amendment. Read the Federalist Papers. Read the Virginia and Kentucky Resolutions.

If a state becomes oppressive, people can move to one of the other 49 states or other US territories. If the federal government becomes oppressive....God help you.

Also, each encroachment upon the powers of the states---including the encroachment which you are advocating for---sets a further precedent which makes it more likely for further encroachments to occur. When we disregard the rule of law to correct a perceived injustice, the long-term destruction of our legal structure usually outweighs the short-term benefit of the relief to the affected parties.

 

[JamesRussler]

Our Constitution was written to restrain the federal government broadly and restrain the states narrowly. Read the 10th Amendment. Read the Federalist Papers. Read the Virginia and Kentucky Resolutions.

If a state becomes oppressive, people can move to one of the other 49 states or other US territories. If the federal government becomes oppressive....God help you.

Also, each encroachment upon the powers of the states---including the encroachment which you are advocating for---sets a further precedent which makes it more likely for further encroachments to occur. When we disregard the rule of law to correct a perceived injustice, the long-term destruction of our legal structure outweighs the short-term benefit of the relief to the affected parties.

Federal government, state government... They're all just "the government" to me. Just more paper pushers trying to take my money and tell me what to do. Don't get me wrong – I understand the sentiment about preserving local autonomy, etc. But at the end of the day, I'm just too damn libertarian to care about "state's rights" at the expense of my personally held civil rights. That whole "move to another state" argument is about as convincing as "move to another country." How bout, "no, I wanna stay right here, and I want the government to fuck off."

Anyway, I don't see how incorporating the Eighth Amendment's excessive fines clause against the states is an "encroachment upon the powers of the states" or otherwise "disregarding the rule of law." For one thing, natural persons, and not states, are the ones enduring punishments and paying fines. It's clear by its terms that the Eighth Amendment guarantees personally held rights, i.e., rights held by "the people." The 10th Amendment says "powers not . . . prohibited by [the Constitution] to the States, are reserved to the States respectively, or to the people." So it looks like the power to lay excessive fines is one of those "powers prohibited by the Constitution" which is not "reserved to the states." Put differently, "the people" have the power to stop the government from laying excessive fines.

 

[Fawlty]

There is a chance the SC kills two birds with one stone. Could go any which way for better or worse.

Not likely. With the rulings so far this year, they'll probably just say legal standing itself is unconstitutional and jet off to Maui.

 

[waiguoren]

Federal government, state government... They're all just "the government" to me. Just more paper pushers trying to take my money and tell me what to do. Don't get me wrong – I understand the sentiment about preserving local autonomy, etc. But at the end of the day, I'm just too damn libertarian to care about "state's rights" at the expense of my personally held civil rights.

Until you found your own nation-state, you have to consent to the rules of someone else's authority. Our nation is a union of states. It's in the name.

You say you believe in local autonomy. Some localities (or states) will have more libertarian laws; others will be more restrictive. Your eagerness to impose your libertarianism on everyone seems...illiberal.

Much of the Bill of Rights was phrased in the following manner: "Congress shall make no law...." instead of "The states shall make no law..." Do you think that was an accident?

Anyway, I don't see how incorporating the Eighth Amendment's excessive fines clause against the states is an "encroachment upon the powers of the states" or otherwise "disregarding the rule of law." For one thing, natural persons, and not states, are the ones enduring punishments and paying fines.

It's an encroachment upon states charging whatever fines they wish. Who gets to decide the meaning of "excessive"? You're saying you want that decision made at the federal level. I say that decision belongs at the state/local level, and that this is obvious if one reads the Constitution fairly.

It's clear by its terms that the Eighth Amendment guarantees personally held rights, i.e., rights held by "the people." The 10th Amendment says "powers not . . . prohibited by [the Constitution] to the States, are reserved to the States respectively, or to the people." So it looks like the power to lay excessive fines is one of those "powers prohibited by the Constitution" which is not "reserved to the states." Put differently, "the people" have the power to stop the government from laying excessive fines.

Sure, the voters in the individual states can elect representatives to get rid of whichever fines are considered excessive. The Supreme Court should have nothing to do with it.

Even the "cruel and unusual punishment" part of the 8th Amendment was not incorporated until 1962. No one knows if the excessive bail part has been incorporated. So now you would like the Supreme Court to "discover" that another 225-year-old provision of the Constitution, which never applied to the states before, should be applied to to states after all. The Supreme Court keeps "discovering" new readings of the Constitution to suit its policy preferences. If that's not federal encroachment, what is?

 

[7437]

Civil forfeiture has turned out police into road pirates, just another great thing about the war on drugs.

Police are just anothrr gang. No need ti be sad when thry get shot in a gang war

 

[JamesRussler]

Until you found your own nation-state, you have to consent to the rules of someone else's authority. Our nation is a union of states. It's in the name.

You say you believe in local autonomy. Some localities (or states) will have more libertarian laws; others will be more restrictive. Your eagerness to impose your libertarianism on everyone seems...illiberal.

It's not imposing libertarianism by prohibiting state governments from fucking people. It's not like I'm forcing them to bake a gay wedding cake or something.

Much of the Bill of Rights was phrased in the following manner: "Congress shall make no law...." instead of "The states shall make no law..." Do you think that was an accident?

No, I don't think it was an "accident" per se, but I don't think everything in that document is 100% purposeful. For one thing, you can't reconcile every passage of text in the Constitution. It's a sad reality that some passages are rendered completely meaningless because they can't be harmonized with others.

As to the Eighth Amendment, it doesn't specify whether it restrains "congress" or "the states." The rights it guarantees apparently belong to "the people" though, so there's that.

It's an encroachment upon states charging whatever fines they wish. Who gets to decide the meaning of "excessive"? You're saying you want that decision made at the federal level. I say that decision belongs at the state/local level, and that this is obvious if one reads the Constitution fairly.

I don't see where the Constitution guarantees states the "right" to charge "whatever fines they wish" (doesn't prohibit them either, which is your argument). But the Constitution does guarantee people freedom from "excessive" fines. If there's a conflict between states and individuals over the power to impose excessive fines, that last clause in the 10th Amendment, construed in light of the 8th Amendment, resolves it conclusively IMO.

Sure, the voters in the individual states can elect representatives to get rid of whichever fines are considered excessive. The Supreme Court should have nothing to do with it.

I don't think the SCOTUS should have to get involved, but it will. There's some ambiguity over whether states have this "power" to impose fines which the Constitution gives people a "right" to resist. Given the text of the 8th Amendment, I think that excessive fines clause is as good a candidate for incorporation as any other.

Even the "cruel and unusual punishment" part of the 8th Amendment was not incorporated until 1962. No one knows if the excessive bail part has been incorporated. So now you would like the Supreme Court to "discover" that another 225-year-old provision of the Constitution, which never applied to the states before, should be applied to to states after all. The Supreme Court keeps "discovering" new readings of the Constitution to suit its policy preferences. If that's not federal encroachment, what is?

Whoa there. I don't think this rises to the level of "discovering" new rights. It's not like we're talking "substantive due process" here. We're talking about interpreting words on a page. You think that because it doesn't say "no state shall," that our right to be free from excessive fines must yield to the whims of the various states. With all due respect, there's no reason for the Eighth Amendment to exist if a guarantee like that doesn't apply to the states. Would you un-incorporate the "cruel and unusual punishment" clause too? Do states have a right to torture people now?

Look, the Constitution isn't perfect. I agree with you about not "discovering" unwritten rights, but you gotta construe it in a way that comports with common sense. Moreover, nobody is 100% consistent with their application, especially Textualists and Originalists (Scalia included). Let's not make it too complicated. If we're gonna incorporate the "punishment" clause, then we might as well incorporate the "fines" clause too.

 

[waiguoren]

For one thing, you can't reconcile every passage of text in the Constitution. It's a sad reality that some passages are rendered completely meaningless because they can't be harmonized with others.

Which passages are you referring to?

I don't see where the Constitution guarantees states the "right" to charge "whatever fines they wish" (doesn't prohibit them either, which is your argument). But the Constitution does guarantee people freedom from "excessive" fines. If there's a conflict between states and individuals over the power to impose excessive fines, that last clause in the 10th Amendment, construed in light of the 8th Amendment, resolves it conclusively IMO.

I've decided I agree with you. Damn. It's rare that someone on Sherdog changes my mind about something important.

The ironic thing is that I was arguing your exact position with @Cubo de Sangre a few months back. In somewhat ham-handed language, I wrote that the 2nd Amendment should be "incorporated by default", by which I meant that states couldn't infringe on the individual's right to bear arms since the text of the amendment doesn't mention Congress. I seem to have forgotten that the 8th Amendment also doesn't mention Congress:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

All of this said, there might be evidence that the framers only intended the 8th Amendment to apply to the federal government. I'd have to make a careful study of the issue. For now though, I've come over to your side.

I don't think the SCOTUS should have to get involved, but it will. There's some ambiguity over whether states have this "power" to impose fines which the Constitution gives people a "right" to resist. Given the text of the 8th Amendment, I think that excessive fines clause is as good a candidate for incorporation as any other.

Agree.

It's not like we're talking "substantive due process" here.

Would you un-incorporate the "cruel and unusual punishment" clause too? Do states have a right to torture people now?

If the text read, "Congress shall not inflict cruel and unusual punishment", then yes the states would have that power.

If we're gonna incorporate the "punishment" clause, then we might as well incorporate the "fines" clause too.

Why? I don't see the logic in that. But again, it's moot since you've already convinced me that the entirety of the 8th Amendment is "incorporated by default".

 

[IdahoCBR]

Can someone explain this to me? My country is lacking freedom so I don't think we have these laws, I'm not sure what they mean

Basically if law enforcement believes the money (or any asset) came from illegal activity, they can confiscate the money. At first they would take money from people who where convicted or arrested, but it has gotten completely out of control. Cops now are pulling people over on the streets and highways and if they find you are carrying a large amount of cash, they just take it and it is almost impossible to get it back.

There have been cases of people going to buy a vehicle who have gotten their cash taken from them by the cops.

I can’t think of anything more unamerican and I am amazed it is still legal.

I will add that its been to the tune of $1 billion to $5 billion every year from 2004-2014. Most people have never been charged with a crime, despite their money being confiscated

 

[JamesRussler]

Which passages are you referring to?

I've decided I agree with you. Damn. It's rare that someone on Sherdog changes my mind about something important.

The ironic thing is that I was arguing your exact position with @Cubo de Sangre a few months back. In somewhat ham-handed language, I wrote that the 2nd Amendment should be "incorporated by default", by which I meant that states couldn't infringe on the individual's right to bear arms since the text of the amendment doesn't mention Congress. I seem to have forgotten that the 8th Amendment also doesn't mention Congress:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

All of this said, there might be evidence that the framers only intended the 8th Amendment to apply to the federal government. I'd have to make a careful study of the issue. For now though, I've come over to your side.

Agree.


If the text read, "Congress shall not inflict cruel and unusual punishment", then yes the states would have that power.

Why? I don't see the logic in that. But again, it's moot since you've already convinced me that the entirety of the 8th Amendment is "incorporated by default".

To wit, the Fourth Amendment is riddled with holes because of the police power and our government’s need to provide for our “general welfare.” Same with the Second Amendment’s “shall not be infringed” clause, and any other personally held right which was phrased in absolute terms. We the People aren’t consistent with our demands on the government, so it’s not surprising that our Constitution isn’t entirely consistent. At the end of the day, everything must yields to reality, or some variation of “reasonable.”

Speaking of reasonable, well... I’m glad I could help That’s the mark of a reasonable man - you can be reasoned with.

While we’re on the topic generally, what should be the test for incorporation? This current random “selective incorporation” regime makes no sense to me. Like, why incorporate “cruel and unusual punishments,” but not “excessive fines?” They’re both part of the same sentence for Christ’s sake. Personally, I think all rights should all be incorporated unless they explicitly don’t apply against states.