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Clarence Thomas vs. Jeff Sessions on Civil Asset Forfeiture

Asset forfeiture has "led to egregious and well-chronicled abuses," Thomas writes.

Gage Skidmore / Flickr.comGage Skidmore / Flickr.comAttorney General Jeff Sessions announced this week that the Justice Department will increase the use of civil asset forfeiture, the practice that allows law enforcement officials to seize property from persons who have been neither charged with nor convicted of any crime. "Civil asset forfeiture is a key tool," Sessions declared. "President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that."

But civil asset forfeiture is not a "lawful tool." It is an unconstitutional abuse of government power. The Fifth Amendment forbids the government from depriving any person of life, liberty, or property without due process of law. Civil asset forfeiture turns that venerable principle on its head, allowing government agents to take what they want without the bother of bringing charges, presenting clear and convincing evidence, and obtaining a conviction in a court of law. It is the antithesis of due process.

By ordering the expansion of this unconstitutional practice, Sessions has placed himself on a collision course with Supreme Court Justice Clarence Thomas. As Thomas recently explained in a statement respecting the denial of certiorari in the case of Leonard v. Texas, not only has civil asset forfeiture "led to egregious and well-chronicled abuses" by law enforcement agencies around the country, but the practice is fundamentally incompatible with the Constitution.

Thomas did not mince words. The legal justifications offered in defense of civil asset forfeiture, he pointed out, cannot be squared with the text of the Constitution, which "presumably would require the [Supreme 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, numerous procedural safeguards, and the right to a trial by jury. By contrast, civil asset forfeiture proceedings provide no such constitutional protections. Thomas left little doubt that when the proper case came before him, he would rule civil asset forfeiture unconstitutional.

Attorney General Sessions should take Justice Thomas' words to heart.

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  • colorblindkid||

    Seriously, can we just get this to the Supreme Court already?

  • Scarecrow Repair & Chippering||

    I believe it's already been there several times, but they've always managed to find a way to sidestep it. Disgusting. How any judge could not be pissed as hell at such egregious violation of due process, the 4th amendment, the 6th amendment, and probably every other one and the core Constitution itself, is beyond me. I know FYTW, but a plainer case of official theft is harder to think of.

  • BestUsedCarSales||

    I hope you realize that every time we follow the constitution dangerous criminals go free and rape families.

  • Chip Woodier||

    You say that like it's a bad thing.

  • XenoZooValentine||

    The most dangerous criminals are in office.

  • NotAnotherSkippy||

    It's just a tax.

  • loveconstitution1789||

    Supreme Court justices don't get stopped by police so they don't experience what us unwashed masses do. Stuff like does not really piss them off.

    Thomas has experienced some stuff before he was a justice and I think Gorsuch will drive a nail into asset forfeiture's coffin too.

  • paranoid android||

    But civil asset forfeiture is not a "lawful tool." It is an unconstitutional abuse of government power. The Fifth Amendment forbids the government from depriving any person of life, liberty, or property without due process of law. Civil asset forfeiture turns that venerable principle on its head, allowing government agents to take what they want without the bother of bringing charges, presenting clear and convincing evidence, and obtaining a conviction in a court of law. It is the antithesis of due process.

    If only President Trump knew about these abuses, surely he'd put a stop to them.

  • BYODB||

    I'm fairly certain Trump wants this to expand. He was on video saying as much, anyway. Something something law and order.

  • Spartacus||

    I bet a determined person could find evidence of ongoing drug dealing in one of Trump's hotels. Then it would be subject to forfeiture. I'm sure he would gladly take the hit for the sake of law and order.

  • Rich||

    Beautiful.

  • GroundTruth||

    Wow! Brilliant! What you'll need is to find a hard-left county or state DA in a progie state who is so blinded by his need to take down Trump that keep pushing, not realizing what the real end game is. That, and a willing criminal who is too stubborn to not take a plea bargain, and is willing to keep fighting all the way to SCOTUS.

  • BYODB||

    Has there been a civil forfeiture cast involving real estate yet? Because if there is, I'll be tempted to go and punch a wall.

  • See.More||

  • Bob K||

    I know recently their was a case in CA the IJ was fighting. Man had his building seized because of a licensed med marijuana business he leased to ran afoul of the law. It was like a 1.6 million dollar property and the crime was selling one bag illegally (or something small). DA offered the building back for a cash payment of 500,000+. I believe the guy one in court.

  • Unlabelable MJGreen||

    He wants police forces to be funded so they can be big and tough. If this practice gets them funded, he's for it. You might be able to sit him down and explain the problems, and sway him to be against it, for a short while.

  • Calidissident||

    That was sarscasm by paranoid android. It's a rehash of the "If only Comrade Stalin knew about these abuses, surely he'd put a stop to them!" line.

  • Bob K||

    "He was on video saying as much, "

    Although to be fair to Trump, the Sheriff lied to him when explaining the process. He put in the most rosiest view saying its when we confiscate property from criminals instead of saying well we take peoples shit and don't even need to prove they are guilty of a crime. I don't think Trump has the slightest clue about this issue which is a problem if Sessions has his ear. Thank God Sessions recused himself and just got on Trumps shit list.

  • ||

    Now if he would only kindly feed himself into the nearest wood-chipper...

  • Citizen X - #6||

    I finally figured out what bothers me the most about Sessions's face: at any given moment, it should have way more fists impacting it.

  • Scarecrow Repair & Chippering||

    He looks like Arte Johnson and/or Henry Gibson.

  • geo1113||

    I was thinking Keebler elf.

  • TrickyVic (old school)||

    Very interesting.

  • Scarecrow Repair & Chippering||

    Thank you!

  • Zeb||

    Illinois Nazi.

  • Dillinger||

    i've always loved you.

  • Unlabelable MJGreen||

    Perhaps Sessions shouldn't listen to Thomas, so that this can get to SCOTUS sooner and it's clearer to the other justices how unlawful this practice is.

    That seems more likely than expecting Congress to do anything.

  • damikesc||

    As usual, Thomas is right and Sessions is wrong.

    Civil asset forfeiture seems like an awful lot of letters to spell "theft", which is all it is.

    How the concept is legal at all is still baffling to me.

  • Robbzilla||

    How? We have a spineless Judiciary and Legislature. That's how.

  • dantheserene||

    d-
    More accurately, it spells "robbery", since force is involved. I would also accept "banditry".

  • BYODB||

    So, in other words, Sessions has managed to counterbalance Trump's pick for the Supreme Court. What a maroon.

  • Calidissident||

    I hope this gets to SCOTUS soon. I'm really not sure how they'd vote. Thomas for sure would strike it down. I think Gorsuch would as well, and I think there's a good chance Sotomayor would. Kennedy is a maybe (he's had some good decisions, but he's also had some egregious ones like Kelo and Gonzalez). I could also see Ginsburg and Alitovoting either way. I'd be surprised if Kagan, Roberts, and Breyer didn't vote to uphold it.

  • damikesc||

    I think there's a good chance Sotomayor would.

    Progressive justice limiting state power?

    I'm dramatically less confident of her doing that than you.

    Roberts will uphold it. I'd be stunned if he didn't. I feel confident 3 would vote against. The rest I'm way less optimistic on.

  • paranoid android||

    Progressive justice limiting state power?

    I'm dramatically less confident of her doing that than you.

    Which indicates only that you're clueless. Sotomayor has been a much more reliable skeptic of police power than most of the other justices in her tenure.

  • TrickyVic (old school)||

    Yep.

    Do a Google search for 4th amendment Sotomayor. Even Reason had an article about it earlier this month.

  • Robbzilla||

    It's literally the only thing I've liked about her decisions.

  • Calidissident||

    By SCOTUS standards, Sotomayor has been pretty good on criminal justice issues. Not perfect, and there's certainly many other issues I disagree with her on, but I would put her as third most likely (after Thomas and Gorsuch) to vote to end civil asset forfeiture.

  • Calidissident||

    Also, after Thomas and Gorsuch, who is the third justice you're talking about? Alito?

  • damikesc||

    Also, after Thomas and Gorsuch, who is the third justice you're talking about? Alito?

    Yes. I'd give Alito a solid possibility of overturning civil asset forfeiture.

  • Calidissident||

    Perhaps, which is why I include him in the maybe category. I still wouldn't put as much confidence in him on this issue as I would Thomas, Gorsuch, or even Sotomayor.

  • Unlabelable MJGreen||

    Thomas, Gorsuch, and Sotomayor are solid votes against it. If there are enough NYT op-eds denouncing it, Ginsburg might vote against it as well. We can only hope that Kennedy is in the right mood, and his colleagues against it are persuasive enough, for him to make the majority.

  • paranoid android||

    H'n'R flash poll:

    Please indicate whether you agree or disagree with the following statement:

    The Revolutionary War was fought over less egregious abuses of power than civil asset forfeiture.

  • Unlabelable MJGreen||

    Of course.

  • perlchpr||

    Agree.

  • BestUsedCarSales||

    Agreed, and I think we should fight a guerilla war against Britain again.

  • Citizen X - #6||

    The Swamp Fox was my nickname in college.

  • Citizen X - #6||

    This is obvious to all but the most determined ignorer of history.

  • μ Aggressor||

    Indeed less egregious, but far more wide ranging. Most people don't give a fuck as long is it's only happening to someone else

  • ||

    Indeed less egregious, but far more wide ranging. Most people don't give a fuck as long is it's only happening to someone else

    ^ This.

    I can't say for sure, but I would bet that "civil asset forfeiture" didn't even need to be a thing pre-Revolution. If the King wanted your stuff, what would stop him from just taking it?

    Quartering troops seems like one of the more widespread things, and troops showing up at your house saying "go somewhere else, we need this house" is a pretty damned egregious thing we don't tolerate anymore.

    But as far as taxes and gun control, yeah - they rose up over a whole let less than we tolerate now as a matter of course.

  • Citizen X - #6||

    Wasn't the "intolerable" duty on paper and other products somewhere in the neighborhood of 2%? How much of your paycheck does Uncle Sugar take every couple of weeks?

  • BYODB||

    That depends, since some people 'pay' a negative rate.

  • Gaear Grimsrud||

    Agreed

  • Calidissident||

    Partly. Aggressor and Square = Circle raise some good points below. Also, the War wasn't just about the abuses, but the fact that the colonies were subject to them with no representation.

    Slavery of course was worse than any abuse in the US today, but that wasn't a reason for the revolt unfortunately.

  • Calidissident||

    Well now this looks weird because their comments are not below mine. Interpret "below" as below paranoid android's comments.

  • Finrod||

    Agreed. See Thomas Jefferson's famous statement about the natural fertilizer of the Tree of Liberty.

  • XenoZooValentine||

    Where do I sign up for the watch list?

    Oh, here it is, never mind.

  • ||

    Yeah but they didn't have iPhones or Netflix or easy access to 3000 calories fast food meals

  • creech||

    I just heard Rand Paul on radio discussing forfieture in terms of really hurting the poor community who can't hire lawyers to get their money back when it has been unfairly confiscated. The example he used was a poor person who accumulated $1000 to go to the dentist (Paul mentioned that you'd be surprised how many poor folks are in a cash economy situation), is stopped on the street by the cops (actually profiled as being poor, black or drug dealer, according to Paul) and they grab his money. Never charged, the person has a really tough time getting his money back.
    Was this hyperbole or can the cops confiscate cash from people on the street, never charge them, and refuse to give the money back?? Sounds more like Mexican or Third World shithole justice than the U.S. And Sessions condones this crap??

  • Citizen X - #6||

    Was this hyperbole or can the cops confiscate cash from people on the street, never charge them, and refuse to give the money back??

    Go up to that search box at the top of your Reason page, type "asset forfeiture," and hit the enter key. I'd have looked for examples for you but i ain't need to get depressed today.

    Suffice to say, not hyperbole.

  • Unlabelable MJGreen||

    My understanding is that is how it can work. The police do need to cite some kind of criminal intent, but I think the money itself can qualify (because who carries that much cash around except drug dealers?). You don't need to be charged, you can even have the case against you thrown out, but it's on you to sue the cops to get the money back.

  • DaveSs||

    The police do need to cite some kind of criminal intent

    The bar for this is set exceedingly low.
    Subject was nervous, which is true of most people when stopped by a cop.
    Subject was in a known drug trafficking area, which to a cop who believes in the drug war means, within the United States.

  • GroundTruth||

    Sessions was never about justice, he was about "law and order". This was pretty much what many expected, always hoping the would rise to the post, but instead has dragged it down to his neaderthal understanding of an Enlightenment constitution.

  • XenoZooValentine||

    But those libertarians are living in outer space, man! They don't know how hard it is out here for The Man, man!

  • XenoZooValentine||

    About twelve years ago, I took $1600 cash to a computer show once to build the trusty whatchamacallit I'm typing this on. A friend my age, who used to get hassled a lot by bored squirrel chasers, drove me there to help me pick parts.

    Good thing we didn't get pulled over. If the cop decided to help himself, it would have been our word against his.

  • Gaear Grimsrud||

    I recently drove into Chicago to make a purchase with 7500.00 in cash. I had the whole wad in my pants pocket. I told my wife that if we were pulled over they'd have to get a warrant to search me because I had no doubt CPD would steal it. She was stunned so I sent her some Reason articles on the subject. She's a lot more careful now.

  • IMissLiberty||

    We were warned: if Trump will use eminent domain to try and obtain land for a casino parking lot, he has no respect for other people's property rights.

  • tommhan||

    Hopefully a case will come up soon so we can have a chance to stop these insane actions.

  • Hank Phillips||

    The Bush asset-forfeiture-triggered economic collapse doesn't qualify as an important enough "case"?

  • jerbigge||

    Asset forfeiture is legalized theft.

  • Hank Phillips||

    Observe that neither Beauregard nor Long Dong mention the causal link between asset-forfeiture looting and panics, liquidity crises and economic collapse. That connection was exposed in 1932 by the man who coined "Gross National Product" as a metric for assessing economies. Democrats won the next five elections.

  • mysmartstuffs||

    Perhaps Sessions shouldn't listen to Thomas, so that this can get to SCOTUS sooner and it's clearer to the other justices how unlawful this practice is.

    That seems more likely than expecting Congress to do anything.
    My recent post: Newbie List Building Blueprint Review

    Sent from Best Jvzoo Reviews

  • m.EK||

    Didn't Jeff Sessions swear or affirm an Oath of Office? The Oath is a LEGAL AND BINDING CONTRACT to do what the Oath says for whom it says. To violate said Oath is a CRIME!
    If Sessions does what this article says he is doing, then he is committing TREASON! For, he knows that the rules that the police have been using is not Constitutional!
    This is a blatant CRIME! Punishable by taking all he has and distributing it to the harmed and then tossing his ass away for as long as the crimes are harming!
    This should also apply to the police chiefs that force their people to do this and the prosecuters offices and personel. These people must understand that to swear or affirm the Oath of Office is a promise, a vow, a giving of one's word to honor their Oath.

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