The Supreme Court Takes on Asset Forfeiture

As usual, there are some Supreme Court cases going on at the moment of great interest to me.

First and foremost, we have Alvarez v. Smith, on which Radley Balko over at Reason Magazine has written an excellent article. The case addresses the constitutionality of the asset forfeiture laws in place in Illinois. The contentious element of asset forfeiture is that it permits police to sieze property under the pretense that it was gained by illegal means, without need of a warrant or even charging the the property owner with a crime. As SCOTUS Wiki puts it, the case discusses "Whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property." Yes, you read that correctly; there is no judicial or administrative review of the legality of the confiscation. Balko makes that point clear in his description of the petitioners in this case.

The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime. All perfectly legal, at least until now.

In addition to there being no real oversight to guarantee that police have evidence before siezing property, they have an economic incentive to be overzealous in their seizures. Balko explains both that and the practice's origins as part of America's disastrous drug policy here.

Civil asset forfeiture is a particularly odious outgrowth of the drug war. While few would argue that criminals ought to be able to keep the proceeds of their crimes, civil forfeiture allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Hence, forfeiture cases tend to have names like U.S. v. Eight Thousand Eight Hundred and Fifty Dollars, or U.S. v. One 1987 Jeep Wrangler. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, giving them a clear and unmistakeable incentive to seize as much property as often as possible.

Fittingly, the Supreme Court is hearing arguments in Alvarez on the 25th anniversary of the Comprehensive Crime Control Act of 1984, the federal legislation that gave us the modern abomination that is drug forfeiture. That law made it easier for federal prosecutors to seize the assets of drug suspects, regardless of whether they were ever charged with a crime. It allowed the government to use hearsay evidence in forfeiture proceedings, and required a showing of only probable cause that the property was tied to a drug crime in order for the government to keep it. That meant, for example, that federal agents could testify to something an informant had told them even if the informant was unavailable to the defense for cross examination.

After a series of particularly outrageous forfeiture cases made national headlines throughout the 1990s, the late Rep. Henry Hyde (R-Ill.) was able to push through some reforms in 2000. The Civil Asset Forfeiture Reform Act (CAFRA) bumped the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay, and provided for defendants who won in court to be compensated for attorney's fees.

But the CAFRA reforms applied only to federal law, not to the states, and after 1984 many states passed forfeiture bills similar to the new federal law. Illinois' law is one of the worst in the country. DAFPA still allows the state to use hearsay evidence, for example, and still sets the state's evidentiary burden at probable cause. Conversely, if property owners want to use the "innocent owner" defense, they can't use hearsay, and their burden is the higher "preponderance of the evidence" standard. Property owners must post a bond on the seized property just to get a hearing, which again can take up to six months. And even if they prevail in court, they still forfeit 10 percent of the bond. The government isn't required to reimburse them for attorney's fees, court costs, or interest, nor is the state liable for any loss of time or income caused by the pilfered property.

The fact that such practices even exist is completely absurd. The Fourth Amendment to the United States Constitution unequivicolly asserts that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I seem to have missed the part where it says "unless we feel the need to engage in unreasonable seizure for prosecution of the drug war."