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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.


Original Submission

 
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  • (Score: 0) by Anonymous Coward on Friday March 17 2017, @06:03PM (1 child)

    by Anonymous Coward on Friday March 17 2017, @06:03PM (#480525)

    What is your opinion on judges like Thomas and Scalia thinking or saying they are "originalists"? Do you think they really think of themselves that way? Because it is impossible to consistently hold and apply those views 200+ years later. Scalia was certainly not shy to go against his originalist objections when it suited him, for instance in his arguing GWB's equal protection rights were being denied in the 2000 election.

    In this Thomas opinion he has a nice section where he points out that civil forfeiture was practiced by the founding fathers, then goes on to make the argument how times and circumstances have changed and how it shouldn't be applied so easily these days. To me, that sounds very un-originalist (and reasonable). Playing the originalist card in an argument always struck me as the lazy way out; "instead of having to research and write up a long and compelling argument, I will just claim 'original intent' and go hit Happy Hour."

  • (Score: 2) by NewNic on Friday March 17 2017, @06:31PM

    by NewNic (6420) on Friday March 17 2017, @06:31PM (#480547) Journal

    Please ask any one of these originalists where the word "affects" appears in the Commerce Clause.

    --
    lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory