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posted by on Friday March 17 2017, @01:16PM   Printer-friendly
from the we-won't-hear-the-case,-but-if-we-could... dept.

The Washington Post has some analysis of a noteworthy Supreme Court non-decision.

In today's [March 6] Leonard v. Texas, Justice Clarence Thomas sharply criticizes civil forfeiture laws. The one-justice opinion discusses the Supreme Court's refusing to hear the case (a result Thomas agrees with, for procedural reasons mentioned in the last paragraph); but Thomas is sending a signal, I think, that at least one justice — and maybe more — will be sympathetic to such arguments in future cases.

From Justice Thomas' statement:

In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent (though some statutes, including the one here, provide for an innocent-owner defense). Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.

Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable.

[...] These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.


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  • (Score: 2, Informative) by ikanreed on Friday March 17 2017, @03:13PM (3 children)

    by ikanreed (3164) Subscriber Badge on Friday March 17 2017, @03:13PM (#480433) Journal

    *In some states.

    The problem with civil forfeiture is purely a matter of standards of evidence. Any state where the rules for retention are "preponderance of evidence" or laxer(some, like Alabama, only require primae facie evidence of wrong doing), you're right, it's basically completely arbitrary.

    I have all sorts of gripes about my state's government, but at least our laws encode asset forfeiture to the state to criminal standards(i.e. the classic "Beyond a reasonable doubt").

    So, like a great many things, it's the details that make the injustice.

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  • (Score: 2) by Whoever on Friday March 17 2017, @03:16PM (2 children)

    by Whoever (4524) on Friday March 17 2017, @03:16PM (#480438) Journal

    No, the problem is that the property is treated as its own legal entity, which the owner has no rights over.

    • (Score: 1, Insightful) by ikanreed on Friday March 17 2017, @03:22PM (1 child)

      by ikanreed (3164) Subscriber Badge on Friday March 17 2017, @03:22PM (#480444) Journal

      That's not the actual problem of asset forfeiture at all. That's a popular internet metaphor, but none of the legal basis takes that framing at all. The laws aren't written that way. The legal rulings aren't written that way. The police reports aren't written that way.

      Please don't get a law degree from Google-U, or you'll start believing things like writing your name in ALLCAPS refers to a separate legal entity.

      • (Score: 5, Informative) by AthanasiusKircher on Friday March 17 2017, @05:19PM

        by AthanasiusKircher (5291) on Friday March 17 2017, @05:19PM (#480507) Journal

        That's not the actual problem of asset forfeiture at all. That's a popular internet metaphor, but none of the legal basis takes that framing at all. The laws aren't written that way. The legal rulings aren't written that way. The police reports aren't written that way.

        Hmm... well, I could cite actual statutes, but perhaps the U.S. Department of Justice [justice.gov] will do for an explanation. As it explains at that link, criminal forfeiture is an action brought against a person who committed a crime. Civil forfeiture (which is the subject of the current story) is, I quote:

        Civil judicial forfeiture is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary.

        You'll note the "in rem" phrasing from Justice Thomas as quoted in the summary -- he's talking about cases brought against property. You're apparently talking about criminal proceedings in your state. That's great (and every state, as you note, is different), but it's not what we're talking about here.

        Please don't get a law degree from Google-U, or you'll start believing things like writing your name in ALLCAPS refers to a separate legal entity.

        GP's phrasing may be a bit imprecise, but there's no reason for your over-the-top berating. He's basically accurate in the sense addressed directly in the summary: because these civil cases are framed legally against the property (rather than a person), the legal standards are often much more loose for a seizure than in criminal forfeiture. Yes, it's a legal fiction of sorts, but it's a legal fiction that works in favor of the prosecution procedurally.