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posted by takyon on Thursday February 21 2019, @03:11AM   Printer-friendly
from the kick-back dept.

Supreme Court curbs power of government to impose heavy fines and seize property

In a unanimous decision, the Supreme Court on Wednesday ruled to drastically curb the powers that states and cities have to levy fines and seize property, marking the first time the court has applied the Constitution's ban on excessive fines at the state level.

Justice Ruth Bader Ginsburg, who returned to the court for the first time in almost two months after undergoing surgery for lung cancer, wrote the majority opinion in the case involving an Indiana man who had his Land Rover seized after he was arrested for selling $385 of heroin.

"Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties," Ginsburg wrote. "They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue."

Also at National Review, SCOTUSblog, and NPR.


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  • (Score: 5, Insightful) by Runaway1956 on Thursday February 21 2019, @03:17AM (24 children)

    by Runaway1956 (2926) Subscriber Badge on Thursday February 21 2019, @03:17AM (#804349) Journal

    Wikipedia shows that civil forfeiture has a history longer than that of the US. Well, most of that is ancient history. Civil forfeiture in recent times was brought back when the War on Drugs kicked off. The concept should have been nipped in the bud, then. It violates the constitution just as clearly as slavery does.

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  • (Score: 5, Informative) by AthanasiusKircher on Thursday February 21 2019, @04:52AM (23 children)

    by AthanasiusKircher (5291) on Thursday February 21 2019, @04:52AM (#804380) Journal

    Civil forfeiture in recent times was brought back when the War on Drugs kicked off. The concept should have been nipped in the bud, then.

    Well, arguably it was [wikipedia.org]. In Austin v. United States (1993), the Supreme Court unanimously said basically what it said today -- i.e., the Eighth Amendment's Excessive Fines Clause applies to civil forfeiture cases. It's clearly unconstitutional IF it is "excessive." (Problem is defining that latter term...)

    The difference is that SCOTUS never explicitly said the Eighth Amendment applies to state law. You see, bizarrely, we still function under the precedent of selective incorporation of the Bill of Rights, which was originally only intended to apply to the federal government. Until the early 20th century, that was basically true. (Most people don't realize that -- but it's how some state governments in the early U.S. actually had established religions. It meant that state governments didn't need to recognize your rights against self-incrimination or for jury trials or for whatever, mostly until the mid-20th century.)

    However, this has all be done piecemeal, because there's no clear Constitutional amendment that ever changed this policy. The 14th Amendment has been interpreted as allowing various elements of the Bill of Rights to be incorporated against the states, but every single clause has to be done alone. (Note there are quite a few clauses that still have not been incorporated [wikipedia.org].)

    All of you strict constructionists out there take note -- the Bill of Rights was originally only limitations against the federal government. This ruling today is the sort of "judicial activism" that plays out when SCOTUS justices freely "interpret" the Constitution.

    Anyhow, as I started to say, SCOTUS has said civil forfeiture runs into unconstitutional elements for excessive fines since 1993. It also reiterated that ruling in United States v. Bajakajian [wikipedia.org] (1998), saying fines that were "grossly disproportional to the gravity of [the] offense" were unconstitutional.

    On the other hand, SCOTUS has handed down some horrible decisions over the years, the worst of which was arguably Bennis v. Michigan [wikipedia.org] (1996).

    But all of this is basically irrelevant, and I'm sorry that I cannot join in rejoicing about the court ruling too much today. I don't think anyone in the past few decades has ever seriously questioned that the federal government didn't have jurisdiction to overrule an excessive fine in a civil forfeiture case. The Indiana ruling was clearly wacko on its legal theory -- hence why SCOTUS stomped it down in a unanimous ruling (even though, as noted above, theoretically the Eighth Amendment right hadn't been formally incorporated yet).

    SCOTUS and lots of federal and state courts have been ruling on these cases for years. Sometimes they do good things to rein stuff in; most of the time they have allowed abuses to continue. I really can't see how this court ruling will definitively change anything about that. I suppose some states have been operating under the assumption that maybe their cases would never been carried to federal courts -- and maybe, just maybe, SCOTUS wouldn't see excessive fines as a Constitutional problem -- but since quite a few have already been adjudicated there (without officially incorporating the Eighth Amendment), I'm not very optimistic that we're suddenly going to see a lot of this reined in further.

    Please note also that SCOTUS did NOT rule on the merits of this case -- they merely tossed the state ruling that there was no Eighth Amendment question to be considered. Although SCOTUS suggested that seizure in this case was excessive, it's still up to the state courts to retry the case and make that determination.

    • (Score: 2) by RamiK on Thursday February 21 2019, @04:56AM

      by RamiK (1813) on Thursday February 21 2019, @04:56AM (#804384)

      Most people don't realize that -- but it's how some state governments in the early U.S. actually had established religions. It meant that state governments didn't need to recognize your rights against self-incrimination or for jury trials or for whatever, mostly until the mid-20th century.

      Learn something new every day. Thanks!

      --
      compiling...
    • (Score: 4, Interesting) by AthanasiusKircher on Thursday February 21 2019, @05:11AM (1 child)

      by AthanasiusKircher (5291) on Thursday February 21 2019, @05:11AM (#804387) Journal

      I should note one good thing that came out of this ruling -- firmly stamping the Eighth Amendment as a potential concern in civil forfeiture cases at the state level may make it easier in some states to bring cases. (In many states, the legal process for challenging civil asset forfeiture is rather labyrinthine, so this may simplify the grounds for some actions.)

      But as for substantially reining in police practices? I'll believe it when I see it.

      Important context I forgot to mention: Realize that Indiana actually has an excessive fines clause in its own state constitution [indiana.edu] too, and yet the Indiana Supreme Court overturned lower courts here and said it was okay to take this property. Realize that ruling was wacko because it basically argued that a state constitution clause that mirrored the Eighth Amendment wasn't enough to create a concern for taking property in this case, even with SCOTUS precedent for 25 years that says the Eighth Amendment language applies to civil forfeiture cases.

      So, a state supreme court when confronted by an excessive fines clause in its own state constitution wasn't bothered by civil forfeiture here. Are we really to think that magically saying a federal excessive fines clause applies is going to make a huge difference in practice?

      • (Score: 2) by cubancigar11 on Thursday February 21 2019, @08:05PM

        by cubancigar11 (330) on Thursday February 21 2019, @08:05PM (#804681) Homepage Journal

        No, and that is an important thing you have said that everyone should read. All law is open to interpretation, and at every juncture the courts have historically protected the police.

        Courts are by nature mighty conservative, and contradictory to themselves, consistent only in their lack of interest in reigning the power of state.

    • (Score: 4, Insightful) by The Mighty Buzzard on Thursday February 21 2019, @05:17AM (13 children)

      by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday February 21 2019, @05:17AM (#804392) Homepage Journal

      Strict constructionist here. I'm fully aware that illegal rulings can have good results. They're still illegal though. If you want a law or amendment that doesn't exist, do things the proper way. Anything else is tyranny regardless of the details.

      This particular case, for instance, I fully believe the law should read as construed by SCOTUS. But it doesn't.

      --
      My rights don't end where your fear begins.
      • (Score: 2) by AthanasiusKircher on Thursday February 21 2019, @05:55AM (12 children)

        by AthanasiusKircher (5291) on Thursday February 21 2019, @05:55AM (#804398) Journal

        Yeah, believe it or not, I sort of agree with you. But we haven't lived in Constitutional land since at least the late 1930s. From a theoretical standpoint, I can agree with you... But from a practical legal standpoint, I also feel at some level one had to have consistent legal jurisprudence operating.

        Given precedent of the past 75 years, this ruling is clearly consistent. I grate my teeth every time I see rulings like this, but denying them at this point would be arbitrary and capricious in terms of precedent, which I think would be even worse.

        • (Score: 5, Insightful) by The Mighty Buzzard on Thursday February 21 2019, @03:24PM (11 children)

          by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday February 21 2019, @03:24PM (#804541) Homepage Journal

          Oh, I'm not saying the justices should go overturning precedent. I'm saying we need to do some amending, give every last judge and justice the boot, and restock the bench with strict constructionists who can be impeached for handing out decisions that go against the Constitution. A very tall order, I'll grant you.

          --
          My rights don't end where your fear begins.
          • (Score: 3, Interesting) by RS3 on Thursday February 21 2019, @05:36PM (10 children)

            by RS3 (6367) on Thursday February 21 2019, @05:36PM (#804587)

            What, a return to sanity and stability? (tongue-in-cheek of course)

            As often, I strongly agree with you.

            But I'm reminded that our (USA's) system was designed to be self modifying and correcting (constitutional amendments, for ex.). It went off the tracks long ago. "Checks and balances" are nil. Police do "internal investigations" and conflict of interest is government's "business as usual".

            The system was designed by very intelligent and very pro-active people who all but assumed a wise and involved public would keep things in check. Over the years various things have de-powered the people and we feel ignored, un-represented, dis-involved, helpless, and ultimately manipulated. Now we have a voting public who are (too) heavily influenced by the viral topics of the day (both sides, all media).

            The one thing I would immediately change in our system is: I would make it MUCH easier to remove people from office. We _could_ vote 4 times a year, for instance. In my area are some local officials that I think would be removed quickly if people felt the power to do so. The way it is now, someone gets into office, we might not like them, but it's too difficult to remove them, and we just deal with it. At the end of 4 years most people think "well, I don't like that person, but life isn't too bad, and the alternative is fairly unknown and I don't want to take a risk on an unknown for 4 years, so I'll vote for the unliked incumbent". If we voted 1, 2, 3, or 4 times a year, we'd be more likely to try someone new. I can hear all the knee-jerk reactions, but think and sleep on it a while.

            No matter the arguing, I think it needs to be easier to remove unwanteds from office.

            • (Score: 3, Interesting) by The Mighty Buzzard on Thursday February 21 2019, @05:56PM (3 children)

              by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday February 21 2019, @05:56PM (#804593) Homepage Journal

              I'm not especially worried about elected officials needing removed. I see the merit in being able to do your job as your conscience dictates as well as of doing the will of the people who elected you. What we have now is a workable compromise between the two if not a perfect one. Politically appointed, utterly unaccountable asshats with lifetime positions is not what we need in any part of government though.

              --
              My rights don't end where your fear begins.
              • (Score: 2) by RS3 on Thursday February 21 2019, @06:42PM (2 children)

                by RS3 (6367) on Thursday February 21 2019, @06:42PM (#804616)

                > Politically appointed, utterly unaccountable asshats with lifetime positions is not what we need in any part of government though.

                Absolutely agree. "Authorities". They're given too much power and discretion with essentially no oversight. The very idea that _anyone_ can seize property, garnish wages, etc., without a full court process and decision is complete breakage of US Constitutional rights.

                I still think we need to be able to remove elected representatives and officials more easily, and more local ones more easily than higher level ones.

                • (Score: 2) by The Mighty Buzzard on Thursday February 21 2019, @06:54PM (1 child)

                  by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday February 21 2019, @06:54PM (#804624) Homepage Journal

                  I was talking about the judges and justices but law enforcement folks fit the bill as well, yeah.

                  --
                  My rights don't end where your fear begins.
                  • (Score: 2) by RS3 on Friday February 22 2019, @12:00AM

                    by RS3 (6367) on Friday February 22 2019, @12:00AM (#804785)

                    Oh gosh yes. Dare I admit how happy it makes me when a judge is found guilty of something? I'm glad at least someone somewhere is trying to clean up the "system".

            • (Score: 3, Insightful) by fyngyrz on Thursday February 21 2019, @06:46PM (5 children)

              by fyngyrz (6567) on Thursday February 21 2019, @06:46PM (#804620) Journal

              The system was designed by very intelligent and very pro-active people who all but assumed a wise and involved public would keep things in check.

              If you read the constitution, you will see there is no penalty of any kind specified for violating it.

              So I think it's pretty clear that the authors also assumed that the representatives would be honorable in following its requirements.

              I have very high confidence that omission was the single greatest error WRT the constitution's ability to do the job it was envisioned to do.

              --
              (√(-shit))²
              Shit just got real

              • (Score: 2) by The Mighty Buzzard on Thursday February 21 2019, @06:55PM

                by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday February 21 2019, @06:55PM (#804625) Homepage Journal

                Yep. Pretty glaring oversight, that.

                --
                My rights don't end where your fear begins.
              • (Score: 1, Insightful) by Anonymous Coward on Thursday February 21 2019, @08:54PM (1 child)

                by Anonymous Coward on Thursday February 21 2019, @08:54PM (#804703)

                yes there was. they expected the people to kill them when they didn't uphold the bill of right and the constitution. not change the channel to watch a "reality" tv show.

                • (Score: 2) by fyngyrz on Thursday February 21 2019, @10:10PM

                  by fyngyrz (6567) on Thursday February 21 2019, @10:10PM (#804740) Journal

                  they expected the people to kill them when they didn't uphold the bill of right[sic] and the constitution.

                  This is certainly arguable — but it doesn't change a word of what I said, and in fact reinforces it if true: the lack of a forma process was a huge error; depending on the honor of politicians was a huge error; and to whatever extent your assertion actually underlies the document, relying on that was also a huge error.

                  Now we have a system that is corrupt from top to bottom, and no adequate means to fix it.

                  --
                  Before you louse something up, THIMK!

              • (Score: 2) by RS3 on Friday February 22 2019, @12:03AM (1 child)

                by RS3 (6367) on Friday February 22 2019, @12:03AM (#804789)

                If you read the constitution, you will see there is no penalty of any kind specified for violating it.

                I consider it high treason.

                • (Score: 0) by Anonymous Coward on Friday February 22 2019, @08:21PM

                  by Anonymous Coward on Friday February 22 2019, @08:21PM (#805306)

                  thank you. it's at least sedition when an elected official tries to subvert the BoR or the constitution. they are supposed to be tried and executed. i thought i was clear by "kill them" b/c it's perfectly legitimate to do it without the trappings of a trial.

    • (Score: 5, Interesting) by sjames on Thursday February 21 2019, @10:00AM (5 children)

      by sjames (2882) on Thursday February 21 2019, @10:00AM (#804449) Journal

      On the other hand, by firmly establishing that forfeiture constitutes a fine, it may be easier to invoke due process to stop one of the more pernicious aspects, forfeiture without bothering to seek a conviction first. Or forfeiture taking away resources that might be used to mount a defense.

      I still find it disgusting that such a crazy scam as claiming a suit against the property itself as a way to supposedly remove the owner's rights from the picture could be allowed to exist in the 20th and 21st century.

      • (Score: 1, Insightful) by Anonymous Coward on Thursday February 21 2019, @03:08PM (3 children)

        by Anonymous Coward on Thursday February 21 2019, @03:08PM (#804535)

        Yes. The problem with civil asset forfeiture is that, for whatever reason, due process doesn't seem to apply at all. Anything that makes it easier to attach due process is a step in the right direction, regardless of what reasoning is used.

        Potentially even better is the fact that this is a unanimous decision, with even Kavanaugh on board. It might signal more support on the court for further limitations.

        The legal process of civil asset forfeiture should exist, but only usable in cases where the alleged criminal is not available to stand trial.

        • (Score: 2) by RS3 on Thursday February 21 2019, @06:52PM (2 children)

          by RS3 (6367) on Thursday February 21 2019, @06:52PM (#804623)

          Need some lawyers / legal experts here. I remember talking to my lawyer brother about this general topic years ago. IIRC, he said the Constitutional "due process" is interpreted to _only_ apply to criminal, not civil cases. I don't think the US Constitution makes any such distinction. Anyone know?

          The legal process of civil asset forfeiture should exist, but only usable in cases where the alleged criminal is not available to stand trial.

          I get where you're going with this, but I worry about abuse. Someone could "conveniently" be unavailable: "all tied up", "indisposed", "hospitalized", etc.

          • (Score: 0) by Anonymous Coward on Friday February 22 2019, @03:32AM (1 child)

            by Anonymous Coward on Friday February 22 2019, @03:32AM (#804847)

            I guess I would recommend this [cornell.edu] for a discussion of due process.

            The exact wording is "deprived of life, liberty, or property without due process of law," and it is found in both the Fifth and Fourteenth Amendments, and therefore applies explicitly to both the federal and state governments. I suspect your friend might have been oversimplifying; the distinction is not between criminal and civil cases, but rather between cases in which the government is a party, and those in which it is not. Since the government is always a party in a CAF case, due process needs to apply, and therefore the government, constitutionally speaking, cannot take the property first and force the citizen to sue to get it back, but rather must bring a case against the citizen (presumably a criminal one) and only then take the property if successful. To be absolutely clear, there is no fundamental problem with the government seizing property that was used in a crime; they just need to win the criminal case first. (There is still a potential problem, in that the property in question might not have belonged to the criminals, and might have been used without the owner's knowledge or permission).

            Even if your claim were correct, in the most common abuse, the government declares that the property was used in a crime, and therefore the seizure is necessarily part of a criminal proceeding, even if civil rules are used in the actual forfeiture case.

            The original (and valid) use of CAF was for property for which there was no identifiable owner to deprive, such as if the Navy or Coast Guard captures a pirate ship, but not the actual pirates. They could then use CAF against the pirate ship. Or perhaps thieves steal a gun, file off the serial numbers, and use the gun in a crime. The gun has an owner, but nobody knows who it is, so it's reasonable for the government to seize the gun. The concern that the government might declare someone "conveniently unavailable" is... well, in the post-Patriot Act environment, not a totally unreasonable concern, but generally I think the legal system is well-equipped to identify the owner of property if such determination can be made. In a case such as this one, there's absolutely no question as to who the owner is especially given titling and licensing rules surrounding automobiles.

            • (Score: 2) by sjames on Monday February 25 2019, @12:31AM

              by sjames (2882) on Monday February 25 2019, @12:31AM (#806103) Journal

              An additional problem is that the government was suing the property itself even when they knew exactly who it belonged to in order to remove their rights from the equation. Convenient unavailability would be a near certainty in a climate where they're willing to abuse an ancient law that badly in the first place.

      • (Score: 2) by AthanasiusKircher on Thursday February 21 2019, @05:51PM

        by AthanasiusKircher (5291) on Thursday February 21 2019, @05:51PM (#804590) Journal

        On the other hand, by firmly establishing that forfeiture constitutes a fine, it may be easier to invoke due process to stop one of the more pernicious aspects, forfeiture without bothering to seek a conviction first.

        I don't see anything in this ruling that suggests anything would change here. As I noted in my previous post, SCOTUS "firmly established" that forfeiture was a fine subject to 8th Amendment restrictions 25 years ago. The ONLY thing this ruling did was to assert clearly that this clause of the 8th Amendment also applies to state (and local) laws.

        You might think that's an improvement -- and it is -- but it already was basically true. Because I'm pretty sure every state constitution has an "excessive fines" clause that parallels the 8th Amendment (or at least statutes to that effect), so legally states were already bound to avoid excessive fines. Furthermore, unless states wanted to challenge the precedent set in Austin by SCOTUS 25 years ago, civil forfeiture would clearly also be subject to oversight as a "fine."

        I'm not saying some states or municipalities couldn't have ignored such arguments on the grounds that technically the Eighth Amendment hadn't been incorporated against the states and technically even though their state also had an excessive fines clause, it might not be required to mean the same thing as the Eighth Amendment and technically therefore Austin might not be a governing precedent. I'm sure some cases probably happened like that -- but I also think they'd be open to a challenge in federal courts even before this ruling, and states would likely have lost.

        Indiana tried to argue what you said, i.e., that forfeiture of property is not a fine, thereby taking an end run around Austin, and SCOTUS was having none of it, because the Indiana Supreme Court didn't even raise that as an issue.

        What this ruling WILL do is somewhat limited, but possibly substantial -- mainly that it makes all claims about "excessive fines" clearly subject to 8th Amendment concerns rather than the state constitutions, etc. they were subject to before. What that means is that it will be easier to establish consistent precedent across many states, rather than having to determine what "excessive" is, as interpreted by each state's jurisprudence individually.

        I still find it disgusting that such a crazy scam

        I find it disgusting too. Unfortunately, I think the media is portraying this ruling as doing a lot more than it likely will. Even a cursory internet search turns up quite a few stories from specific states where government officials are already saying, "huh... well, this probably won't change anything about what we do in forfeiture cases." SCOTUS gave no guidance of what might count as "excessive."