The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Due Process Is Timely
The Supreme Court's recent civil forfeiture ruling and why due process matters today.
Halima Culley's college-aged son was driving her car, and was pulled over by Satsuma, Alabama police. After a search, the officers discovered marijuana, arrested him and charged him with minor drug violations. And they seized the car as incident to arrest. Culley herself had done nothing wrong, but prosecutors filed a claim in a civil court to acquire her car, arguing that it was implicated in her son's criminal conduct. It took her almost two years to finally get that case dismissed—a long time to be left without one's vehicle.
Culley argued that due process should entitle people like her to a fair, prompt hearing, before the property was taken by the government. It should not take two years to regain one's property. In Culley's case, when it reached the Supreme Court last term, the Justices concluded that people like Culley had no due process right to such a preliminary hearing, pending the longer process to consider the forfeiture claim. The Justice did not disagree that notice and a hearing must be provided if states seize real property. In an opinion by Justice Brett Kavanaugh, they ruled, however, that no expedited or preliminary hearing was required by the Due Process Clause.
In ruling, the Justices emphasized "historical practice," like they have in so many opinions in recent years. But modern civil forfeiture practices are totally different from anything historically used in form and in scale; Justice Neil Gorsuch emphasized those "profound" departures in a concurring opinion. Now, people who are not even accused of a crime can have their property taken, without any trial, but also without any exigent circumstances. Five of the Justices raised real fairness concerns about such forfeiture practices. They also emphasized that the forfeiture hearing that is provided must be "timely." And that this due process protection protects important personal and government interests at the same time—a very important point. Perhaps future rulings will more directly tackle the due process concerns that untimely forfeiture practices can raise.
These unfair practices are a global problem, as well. For example, new technology has created due process challenges across the world. While Culley had to wait two years for a hearing, at least there was a chance to present the case in person, eventually. In many jurisdictions, artificial intelligence (AI) systems are being used in courts, whether in risk assessments used to predict outcomes, or to generate evidence, like with facial recognition. If these systems are a "black box" and not interpretable, then people affected, lawyers, and judges have no way to understand what they did or correct errors. Judges are beginning to confront due process or fair trial claims that using these systems violates rights.
Speaking of "timely" due process, it is not an accident that today, the concept of due process is central to many different important problems and debates. Fairness matters to us personally and it matters to society. Today, complaints abound that people are given too much or too little due process in courtrooms and colleges, police stations and jails, in print media and online. Our justice systems are particularly concerned with protecting people from unfair treatment by the government. And yet, major due process failures persist.
To take another example, as new questions about the fairness of common but under-litigated forfeiture practices grow, long established and commonly litigated due process right remains highly underenforced. In 1964, the Supreme Court ruled in Brady v. Maryland that prosecutors cannot withhold exculpatory evidence from the defense in a criminal trial, because that is fundamentally unfair. Yet, as Adam Gershowitz, Jennifer Teitcher and I have recently documented in building a database of five years of reported rulings, while Brady claims are litigated across the country and yet serious claims rarely result in relief. We do not have a good system for remedying severe prosecutorial misconduct that results in unfair trials.
Nor do we have good systems to prevent egregious errors in civil forfeiture, bail hearings, and many other types of processes that affect people's rights. Why is this? Perhaps because many of the people affected are poor and vulnerable. In a society with deep social and political divisions, treating such people unfairly may not create enough of a public debate, a political issue, or result in much media coverage. This reflects a deeper concern that maybe we have taken for granted that due process will protect us, resulting in complacency about threats to due process.
My goal in my new book, "Defending Due Process," is to convince people, whether one is ever caught up in the legal system or not, to appreciate the centrality of due process to our lives. It is understandable that we often want to put outcomes first and the process second. As I will describe in the next blog in this series, human psychology, amplified by social divisions and technology, fosters expectations for that type of immediate gratification, rather than valuing the process.
A timely and fair process for all should matter to us all. It is basic to the rule of law. And, as Justice Kavanaugh highlighted in the Culley case, due process helps to protect both the interests of people and the government. Common ground on due process matters now more than ever, to mend political polarization, to cool simmering distrust of government, and to safeguard our constitutional rights. A revival of due process is long overdue.
