Law & Government

The Awful Supreme Court Precedent That Helped Create Today's Asset Forfeiture Nightmare


Civil asset forfeiture is one of the most destructive and flagrantly unconstitutional government practices occurring in the United States today.

It lets law enforcement agencies seize cash, cars, homes, and other property from innocent people who have been neither charged nor convicted of any underlying crime. The property is then either sold, with the government pocketing all or most of the proceeds, or put to use by the agency that took it. Either way, the police profit from their own policing. All this, even though the Constitution clearly forbids the government from depriving any person of life, liberty, or property without due process of law.

How did we get here? The U.S. Supreme Court deserves a share of the blame. In 1996, the country's highest court issued a far-reaching opinion in Bennis v. Michigan. At issue was the seizure of a Pontiac automobile driven by a man named John Bennis, who was arrested in the car with a prostitute and later convicted of gross indecency. The seized car was jointly owned by John and his wife Tina.

Tina sued to stop the forfeiture proceedings, pointing out that the state had taken her property for a crime she did not commit. But the Court saw things differently. "An owner's interest in property," wrote Chief Justice William Rehnquist, "may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use."

Civil asset forfeiture has only become more common in the two decades since that permissive ruling was issued. Will the Court right the wrong it committed? It will if Justice Clarence Thomas has anything to say about it.

"This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses," he wrote in a 2017 statement respecting the denial of certiorari in Leonard v. Texas, another forfeiture case. Furthermore, the Court's decisions in favor of the practice are at odds with the Constitution, which "presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation."

Those other doctrines, Thomas noted, impose significant checks on the government, such as heightened standards of proof and the right to a trial by jury. Civil asset forfeiture proceedings, by contrast, offer no such safeguards of Americans' rights. Here's hoping Thomas can bring at least four other justices around to his point of view.