Fenster is highly suspicious of the practice of civil asset forfeiture, and wrote of the issue here.
You may know that the law often allows police or other authorities to keep the ill-gotten gains from a criminal transaction. That’s bad enough as far as creating a financial incentive. But the moral hazard is serious enough that police often take assets when no criminal action has been shown to have occurred, or if the owner of the asset was not aware of the crime. Spending sprees are known to result as well.
As I read more about this practice I came across the legal distinction that supports forfeiture. Typically, when the state proceeds against a defendant in a criminal law setting it does do “in personam“–that is, against the actual person. It is this proceeding against an actual person that in turn gives rise to the full range of criminal procedure protections such as a right to a jury trial and heightened standards of evidence.
But the legal theory underpinning asset forfeiture is not “in personam” but rather “in rem”–that is, against “the thing” itself. As Justice Thomas wrote in a recent Supreme Court opinion we will get to below, the use of “in rem” for forfeiture has a long history in American law, with early statutes “permitt(ing) the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime.”
Lawyers are permitted to concoct any number or counterintuitive and indeed absurd devices, and sometimes they will even make sense, or be proven to be useful in pragmatic terms (more on which below). But I must confess I was stumped when I got here. A person is pulled over in a routine traffic stop and is found to have several hundred thousand dollars in cash in the car. The police do not like the explanation, conclude it is ill-gotten in some manner such as a drug transaction, and seize the money without benefit of trial, conviction or criminal standards of evidence. And this is to be deemed somehow reasonable on the grounds that the cash is guilty of a crime?
Oyez, oyez now comes Justice Thomas writing in Lisa Olivia Leonard v. Texas. The facts of the case are similar to the ones sketched out above. It is a one-justice opinion in which Thomas declines to hear the case. But he uses the opportunity to send a clear shot across the bow of the legal theory justifying forfeiture.
He starts by acknowledging that the use of civil “in rem” proceedings instead of criminal “in personam” proceedings has a long history in the United States. Forfeiture arose in the context of customs violations and piracy, with the “offending” vessels being seized without the need for the full range of procedural protections. Thomas quotes from an earlier case dealing with the historical context:
One unaware of the history of forfeiture laws and 200 years of this Court’s precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process.
But rather than endorse the idea that this historical context supports current practice Thomas goes the other way:
I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice . . .
. . . and he takes this view for two reasons.
First, he argues that historical practice and law were substantially narrower than current practice and law. Cases arose out of customs and piracy matters. The actual “in personam” person was often overseas and out of reach of the criminal system and so the offending thing was taken “in rem” under a preponderance of evidence standard. And the assets seized were limited to the instrumentalities of the crime (i.e., the vessel) and did not include criminal proceeds. The taking of criminal proceeds, or what is held to be such proceeds in the absence of procedural safeguards, is a modern invention.
Second, Thomas argues that there is more than a thread of early legal thinking that clearly recognized that standing behind some of the legal fiction of civil “in rem” proceedings stood a recognition that criminal matters were being addressed. It is as though a legal fiction was permitted for practical reasons but that there was still an underlying awareness that taking something from a person is still taking something from a person, and that criminal issues lurked near the surface.
Thomas quotes approvingly from another recent case:
Ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture.
Thomas turned down a review of the case, citing the fact that the petitioner Leonard only introduced a due process argument for the first time in its brief to the Supreme Court, and not in the Texas Court of Appeals case he was reviewing. Still, it is an encouraging sign that at least one member of the Supreme Court is willing to tackle this important problem.