SCOTUS Rejects Guilty Until Proven Innocent – Can't Keep Money from the Innocent
forbes.com
forbes.com
The whole idea of a court case titled, e.g., "State of Texas vs $45,000" is asinine. I'd love to see the SCOTUS lay down the law on that bullshit.
"Armed with this ruling, the Nelson decision may set an important precedent to rein in another abusive civil proceeding: civil forfeiture. The parallels are striking"
Makes me wonder, could this ruling create a perverse situation where someone is arrested with a large sum of money, but the criminal case against the individual is flimsy, so the prosecution might be tempted to drop charges to ensure that the forfeiture can be kept rather than risk losing it if a conviction is overturned?
not guilty != convicted
suspected != convicted
Generally, not, as a matter of law. Civil forfeiture is usually premised on the item being gained through or used in illegal (though not necessarily criminal) activity, not necessarily by the owner (innocent parties with an interest in the property have some rights in forfeiture proceedings, separate from the right to assert that the basic premise of the forfeiture is false.)
This often overlaps with the owner of the property being suspected of a crime, but being owned by someone who committed a crime is not generally the essence of the legal premise.
That's quite distinct from what happened here, where the actual conviction is the legal premise, and thus the conviction being overturned voids the legal premise.
But it's clear, even outside of forfeiture, that that isn't a requirement for losing property to the state for wrongful conduct; civil process (with the government having a cause of action) does exist even outside of forfeiture, even for conduct which also has criminal punishment.
There has never been a principal accepted in this country that all government legal remedies against individuals require criminal conviction, which is what you seem to be asserting ad the principal with forfeiture.
It's clear that certain types of penalties require criminal conviction, and it's clear (now at least, though that should have been obvious before) that penalties expressly premised on criminal conviction require criminal conviction. But forfeiture doesn't really fall into either of those categories.
At some point in time someone arguing for the state was able to successfully introduce property as a "defendant" of a legal action, and average people go along with that. This is, on the face of it, absurd.
All of law exists only to a single purpose, the regulation of actions between humans, not trees, not dogs, not bits of paper with numbers printed on them, human beings.
Even someone's example of confiscating counterfeit money is not an action against the wrong doing of the money. It's an action against a human being who believed they were in possession of the money. They are the ones who suffer harm.
It is only reasonable for the state to confiscate the "money" from the subject, in this case because it is not money, and as such the harm to the subject was done not by the state's action of confiscation, but by the counterfeiter's action of tricking the subject into accepting it. It follows that it is not reasonable for the state to replace the fake money with real money because that would cause harm to a third party (the state). However, the subject would have a reasonable clam of restitution against the counterfeiter should they be convicted, and the state should support that claim.
Labeling an action as forfeiture, as in the case of civil forfeiture, implies a default due to some failure to perform, but that should be proven to the same degree as any question of law. The property does not act, or fail to act, only people can do that. Therefore the state must be obligated to prove that it has reasonable clam to the property, and that the party injured by confiscation are themselves guilty to the degree that such injury is warranted. AND as is the typical structure of law the state suffers the burden of proof to offset the potential for abuse of power.
IE "John Smith is found not guilty of trafficking for the drugs we thought he had on him, but he still could have got the $5000 from some other incidence of trafficking we failed to discover and therefore we're still charging his assets with trafficking".
So the "innocence" of the property can't be proven, and thus it is forfeited. So rather than "He still could have gotten the $5000 from a crime", they're saying "The $5000 could still have been transacted in a crime", and the guilt or innocence of the person it was taken from is considered irrelevant.
The author of the article clearly thinks so, as much of the latter part of the article is speculation about how it will impact civil forfeiture, but I doubt it.
This case addressed money that the state only had a legal basis for seizing in the first place because of a criminal conviction which was later overturned; a ruling that the conviction being overturned is conclusive as to such seizures, and that the state cannot require a separate civil lawsuit to recover the funds in which innocence must be separately proven (which essentially would let them keep money premised on a criminal conviction with only the evidence necessary to secure a civil judgement) is not likely to be applicable to forfeiture cases, where the basis for the seizure is a civil process independent of criminal conviction.
--
The idea is not asinine, it's perfectly rational.
Cops do a drug bust and all the criminals flee. (I'm personally opposed to drug prohibition but it's the law and the easiest example so I'm going with that for simplicity's sake.)
At the scene: 3 bricks of cocaine and $1m dollars. Cocaine is contraband so the cops don't need permission to take it, they can just help themselves to a few fat rails and then throw the rest in a furnace, resell it, or whatever.
What about the million bucks? It's property. there might even be a legitimate reason for it to be there (eg suppose it had just been stolen from a bank but the cops had yet to connect the bank robbery with the drug deal). The cops can't just take it, because if that was allowed then cops could just help themselves to any property they see and how would people ever know what happened to it? OK, so there must be some sort of process to document their taking possession of it until said possession is successfully challenged. That's a court's job.
On one side, the state entity that employs the cops. On the other...who? The (presumed) drug dealers fled so it's not obvious who the other side of the case should be. American law is built from the ground up around adversarial argument between parties with conflicting interests, so for administrative convenience we'd like to have the case be 'Someone v. someone else' like every other legal case. If we don't know who, let's treat the unclaimed property as its own entity until someone says different. Hence 'State of Jurisdiction v. $1 million.'
Practically speaking, this works fine most of the time. If you keep up with legal case news, in any port city you'll see a lot of cases like 'US Customs v. 1000 leather handbags' - sometimes because the handbags in question are knockoffs, sometimes because the paperwork got lost and a shipment ended up in the wrong place, to be later claimed by the rightful owner with documentation.
Asset seizure by police has been abused to hell and back, and I have no hesitation in saying that many police officers and institutions are corrupt. But the legal mechanism for classifying abandoned property is not the problem. That's a purely administrative convenience that is entirely neutral in nature. If you didn't have it, then cops would just label the money as 'evidence', it would disappear, and the problem would be worse because there wouldn't even be a paper trail to follow.
Here's a some search hits under "civil forfeiture cases"
[1] NFL defensive tackle Letroy Guion was stopped and had 190k of cash seized. He had bank statements to prove the provenance of the money.
[2] Overview of cases and depts sued for systematically seizing cash from people stopped, but never charged with a crime.
[1] http://www.huffingtonpost.com/2015/02/11/civil-asset-forfeit...
[2] https://www.forbes.com/sites/instituteforjustice/2014/03/12/...
I was explaining the operational legal reason for the existence of court cases in which one of the parties is an an inanimate object, nothing more.
> this won't have a direct bearing on civil asset forfeiture of the kind you describe, because that only takes place where the identity of the property owner is unknown
I also frequently make typos and consistently spell a few words wrong. Are there any other nits you'd like to pick?
Can you perhaps expand on why this assumption hasn't been successfully challenged as a basis for overturning many of these other cases where there clearly is a property owner? That's the head scratcher to me in how long this practice has continued.
I'm sorry that I don't always make it clear enough when I'm making a narrow technical argument vs when I'm making a sweeping ideological one. I am 100% against police departments being able to profit from civil asset forfeiture, both because the incentives for abuse become overwhelming and because the existence of abuse is then used by others as a pretext for undermining the system within which such rules originate.
My personal concepts of the relation between individuals, society, government, law, and justice, are radically outside the mainstream, which is why you should consider switching to a monarchy and installing me as King, or Queen. On the other hand, distilling those radical ideas down to a manageable set of operational principals that don't require everyone to be a philosopher is difficult, which is why you should probably hold off on the coronation for a bit.
> Guion was charged with two felonies, one for the marijuana and another for possession of a firearm in commission of a felony. Police secured the cash, though Guion’s agent claims the money was from NFL paychecks and that he has bank statements proving it was not related to the drugs. A spokesperson for the Starke Police Department told The Huffington Post they have not received this documentation and that they gave Guion a receipt stating their intent to permanently seize the cash.
Constitutionally, seizure (the money has not yet been forfeited, only seized) only requires probable cause. Finding a large amount of cash next to almost a pound of illegal drugs is undoubtedly probable cause to conclude that the money is the proceeds of illegal activity.
http://profootballtalk.nbcsports.com/2015/03/24/letroy-guion...
With a plea deal and 5k fine & court fees, "the charges were dismissed without adjudication of guilt.
There’s still a civil forfeiture case pending, so he can get his money back."
So now there is no criminal basis for the state holding onto his money...
Edit: 5k court fees -> 5k fine & court fees
I really hope the practice is stopped because it is unconstitutional and abused horribly. In terms of abuse, after the police take someone's money, say they find $10k in cash on you. The police demand proof of its origin (now this of course is once again Guilty until proven Innocent which was hopefully struck down now by SCOTUS), then you go to the police with your proof. The police will cast doubt on your proof, tell you to go to Court and spend $5k of legal fees to reclaim your $10k OR they very kindly say let's just refund you $7k and call it even. This is regular practice. Police stations have been found buying helicopters and other things with such funds (the Washington Post had a great expose on this).
':-|
> Ginsburg forcefully rejected Colorado’s argument that “[t]he presumption of innocence applies only at criminal trials"
So now all the judges in the land have to rely on that. So people just have to sue in every single state, and federal circuit on civil forfeiture cases, and the judges will have to lean on the new Supreme Court opinions, or get it back to the Supreme Court so that they can clarify specifically on a civil forfeiture case.
(page 3: https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf )
However, it doesn't change the rules, and it's by no means clear that the court would change the rules, if the question comes before it, nor does it suggest that the question will come up anytime soon.
If the court had ruled the other way in this case, there would be no chance of fixing civil forfeiture. So I guess you can say that this isn't a "no", but it's also not a "yes". It's not even a "maybe". But the door is still open?
Generally when the question "who the heck dissented on that?!?!" is asked, the answer is Thomas.
That's because he interprets the Constitution and the law according to what he believes them to mean, not according to what he wishes they would mean.
In this case, he clearly states that he sees no constitutional requirement for the State to return property after it has been confiscated post-conviction (as an aside, the article title is misleading: this wasn't confiscation prior to or absent a conviction). The Constitution does not mandate all good things, nor does it forbid all bad things.
The constitution does not mandate all good things, does not forbid all bad things, but VERY NOTABLY includes the 9th amendment. They put that one in for a reason.
* Procedural law is the body of law around how a case is heard and handled: how to petition a court, how cases are adjudicated, jurisdiction (i.e. does the Court have the authority to handle this case), etc.
* Substantive law is basically everything else. Rights, remedies, criminal law, civil law, administrative law, etc.
EDIT: cookiecaper's read on it is probably better than mine, go read that.
1. Colorado law doesn't provide for an automatic refund when convictions are overturned, rather Colorado law provides a process and the defendant's didn't attempt to use the process (Therefore, no Constitutional violation in application of this law);
2. The Defendants here already lost their property rights, and so the Due Process Clause of the Constitution does not apply (Colorado doesn't need to provide any process to refund, so we don't need to even look at the Colorado Law to determine if the process is Unconstitutional).
I don't think it's a wholly invalid point, even if the result is terrible. And obviously the rest of the court decided to lean in favor of the common man, which I think is a general good.
Say you were arrested for holding me up at gun point and robbing me of $100, you are arrested and convicted and ordered to pay me back the $100 which you did. On appeal the conviction is overturned because of some technicality. even though you actually did rob me, there is no question your liberty will be restored (set free), but the question is should property be lumped right into that fold and I be ordered to give you back the $100?
7-1 the Justice's believe a law requiring you to prove you were innocent in order to get the money is unconstitutional. Thomas the lone dissent thinks once you give me the $100 that $100 is no longer yours so due process doesn't apply and the state was free to pass their own law to provide a process for these instances.
1. You break into my house and steal my iPad and it's not covered by insurance;
2. You are convicted based on your own confession and as part of the sentence you are ordered to pay court costs and restitution (replace my iPad);
3. This is where it begins to get tricky:
a. You might pay the court in cash and with a check at sentencing;
b. Maybe upon your arrest you posted bail to be released, this could be a 100% cash bail held by the Court/sheriff/etc (based on local rule) and upon the sentence they deduct the court cost automatically and return the rest (not exactly a seizure) I don't think the can withhold the restitution (iPad amount) so I would still have to try to get that from you, which you may or may not pay
c. This is not an exhaustive list of possibilities you might pay 10% to a bondsman and he posts with the court and they won't deduct costs from them; you might never post bond because the judge let you out ROR or maybe didn't allow bail (unlikely); and like in this case their case there was some jail account; etc...
4. Trickier still is if you elect to pay me, then appeal and conviction is overturned because the confession was given after you asked for your lawyer and should have been suppressed;
5. The state law says because you were convicted and paid me and the court you must now prove you are innocent to get your money back, you claim that is unconstitutional and the court:
the majority says: you are right that is unconstitutional and you should get your money back without having to prove you were innocent
Thomas says: under such a situation the constitution is quite and so the state is allowed, but doesn't have to, make a law on point, which they did in this case. in truth I'm not sure if he took the step to see if the law on its face or as applied is constitutional because the defendants never attempted to use the process
1. The Defendant was charged with a crime and received his Constitutional due process (fair trial; lawyer; confront witnesses; remain silent; etc...)
2. Defendant was convicted and pursuant to that ordered to pay: court costs, fees and restitution (make the victims whole).
A. This is where it starts to get a little tricky...what if the defendant pays, but the conviction is later overturned?
3. The situation in A is accounted for through the Colorado Revised Statutes, specifically, the Exoneration Act. In short, the Act lays our the procedure for all refunds pursuant to A above.
4. Essentially it is this law/procedure that is being challenged for Constitutionality by the Defendants.
5. The majority of Justice's opined that upon the overturn of the conviction the defendant's are automatically entitled to their refund as a matter of law.
6. (5) above is what Thomas seems to take issue with: 1.) Colorado law doesn't provide for automatic return of funds upon overturning a conviction, in fact the law in question says the opposite, and 2.) The Colorado law doesn't violate due process (this is both an interesting and clever legal argument he lays out, see below)
Thomas' due process argument: Constitutional due process only applies when their is a Governmental deprivation of life, liberty or property. Here the defendant's received due process when their property was originally deprived. At that point moving forward, under the law, the Defendant lost his property rights and there is no State law that restores those property rights upon overturning the underlying conviction. What is really dramatic about Thomas' dissent, is that since the defendant has no property rights, the defendant isn't even entitled to any due process to reclaim the funds. In other words he believes the Colorado Exoneration Act is not only Constitutional but it goes above and beyond any legal requirements whereas the Defendant's don't even have a Constitutional Right to a process to reclaim property they lost rights - basically the Defendant's already have a due process and legally they aren't even entitled to that.
So a Conviction is basically a type of enchantment which says you have 3 fewer life points and trouble getting a job. Now someone managed to cast Reverse Conviction, which exiles one conviction -- it's not even in the graveyard, as much as legally possible it's like it never happened, with the only exception being double-jeopardy laws etc. And the question is whether you get those life points back.
According to the majority opinion, having your life points converted into tokens on the State Government card was part of the ongoing enchantment, and so this ended when the enchantment ended: they should be converted back.
According to Clarence Thomas, it was an instant effect that happened when the enchantment was cast, and the ongoing effects were the other parts of the enchantment. So when it was cast, that was the time when you were "deprived" of your life points; it's not an "ongoing deprivation" but a single event which happened in time. You don't get them back unless another card in play says you do.
(A more full analogy would also include the fact that there is this Exoneration Act card which says "(3) Take a conviction token from the State Government and gain a life point. You may not do this if there is an enchantment which creates these tokens either on you or in the graveyard," and a house rule called Due Process which says that you cannot be deprived of life points without some card in the field of play saying so. )
Even running it thru my mind I do see the practical examples of distinguishing between the restoration of property and liberty when they have been deprived based on conviction and later overturned.
In fact I am sure I could provide examples where even people on here might agree the property should not be returned to the defendant after the overturned conviction. A lot of those examples would be where the defendant is actually guilty of the crime, but the conviction is over turned and the victim is forced to return restitution on top of seeing the defendant set free.
Nevertheless, in theory victims have another remedy in civil court at a lower standard than the beyond reasonable doubt of criminal court, but I could see that being traumatic to the victim in a lot of instance and likely so let down by the system they would never pursue it or if they did and won they may never be able to collect again.
It is very tricky no matter what the law is I'll find a set of facts that when applied results in an unjust outcome.
>The Court today announces that petitioners have a right to an automatic refund because the State has “no legal right” to that money. Ante, at 8, n. 11. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law.
In the rest of the dissent, Thomas discusses the due process that was available under Colorado's Exoneration Act and indicated that this law did not automatically entitle convicted persons to an automatic refund of any fees associated with their convictions, partially because state law ordered that money to be dispensed via victim compensation funds.
This highlights a potential chilling effect of this ruling. As states are now on the perpetual hook for any monies that may be confiscated from someone who is eventually exonerated (and in the case of white-collar crime, this could be millions of dollars), and since you can't know that someone won't be exonerated in the future, states who are interested in keeping their budgets balanced will be incentivized to hold such money in escrow instead of dispensing it for victim's relief.
If the exonerated individual could demonstrate his legal entitlement to those monies, he was free to bring a suit under the applicable statutes to do so.
Because the law applied equally and anyone could seek relief, Thomas appears to believe it does not violate the 14th Amendment.
If the people of Colorado did not think this was fair, it was within the purview of their representative government to change. The role of SCOTUS is not to make sure the world is fair; it is to review statutes for compliance against the Constitution and other relevant federal law.
In short, it seems an accurate summary would be that, in Thomas's opinion, the Court's opinion was "activist judgeship", as they merely thought it "intuitively and rhetorically [appealing]" that a state would not be entitled to the funds already paid by an exonerated person and already dispensed by the state, but could point to no law codifying this "intuitive and rhetorical appeal".
Again, IANAL.
IANAL
Reading the dissent, it basically says: when the person was convicted, they paid their fine, and at that point the fine money is now property of the state. The overturning of the original conviction doesn't, however, mean that the fine money also reverts ownership - he claims it is still in ownership by the state so the person cannot claim it is their property being deprived without due process under the 14th amendment.
He proposes that the "correct" way to get the money back is by invoking this other thing called "The Exoneration Act," NOT the 14th. The problem is the Exoneration Act isn't a law that says the state HAS to return funds, it's more of a specific appeal process for people to apply to get funds back. In other words, he recognizes there is no state law in Colorado that requires refunding these fees (nor does he offer a viable Federal one), but he claims there is a process available, at least.
In that sense, his dissent isn't really about him believing these people are NOT owed a refund in the moral sense of what is just, he's simply arguing that the court should not establish that refunds of costs/fines in cases where convictions are overturned is guaranteed by the 14th Amendment. It's kind of a pedantic dissent. And I still don't agree with him :)
The intent behind Thomas's particular brands of "fatuous pedantry" (more commonly called textualism or originalism) are preserving a maximum amount of power to the people through their representative governments.
If the people of Colorado did not see fit to provide such recourse to their exonerated ex-convicts, Thomas believes that the Constitution does not require them to do so. The Constitution merely requires equal protection under the law, and there is no law that is being applied unequally in this case; everyone is equally entitled to seek relief under the Colorado statute, which presumably represents the will of Coloradans as expressed through their state government. If Colorodans do not like this, they can enact change through their government.
When the Supreme Court acts and rules a law either valid or invalid, it's an unelected branch of the federal government imposing its will on the people. This is especially sensitive when the will is being imposed on the states. The Constitution was carefully designed to limit the reach of federal power and allow more authority to more local governments. Disputes over the extent of state's rights are no trivial matter -- they've caused our only civil war thus far.
Anyway, I've found that a great deal of judicial activity is based on highly technical issues that many would consider "fatuous pedantry". IMO it is totally reasonable to suggest a basic modernization/overhaul in our legal system. Until then, however, my experience is that "fatuous pedantry" and "law" go together so often they may as well be synonymous.
You're doing a thoroughly good job of playing one on HN. Thank you for a very informative analysis.
:)
As a sibling commenter points out, it's easy to sound credible by throwing words around without really understanding the nuances. It's always nerve-wracking when someone may take you a little too seriously. I've learned I need to put two disclaimers on my "playing lawyer" posts because just one wasn't enough to avoid the ire of some people who I assume are real lawyers. ;)
And to be honest, if I were a real lawyer, I would still probably want to "IANAL" disclaim most of these speculative/navel-gazing posts anyway.
For that, I've seen the disclaimer "I am a lawyer, but I am not your lawyer."
Think about it this way, it's like malpractice insurance for doctors. So there should be malpractice insurance for states/courts - if a conviction is later overturned and the state is liable for the return of property, it gets paid out by insurance.
IANAL either but wouldn't the victim's relief come from a civil trial, not a criminal one?
I believe there are already processes in place that can be undertaken to delay payment on appeal. Why should criminal penalties be awarded, subject to immediate payment and then have to go through another court proceeding where the plaintiff has to prove their innocence again to get it back?
Many jurisdictions have victim compensation as part of criminal process, which makes some sense as an economy of justice measure, since the burden of proof against the defendant is higher in criminal trial than it would be at a civil trial (so, in principle, the defendant isn't losing any protection) and it prevents the victim from having to go through the whole process of civil litigation.
> This highlights a potential chilling effect of this ruling. As states are now on the perpetual hook for any monies that may be confiscated from someone who is eventually exonerated (and in the case of white-collar crime, this could be millions of dollars), and since you can't know that someone won't be exonerated in the future, states who are interested in keeping their budgets balanced will be incentivized to hold such money in escrow instead of dispensing it for victim's relief.
It seems that Thomas's dissent finds its basis in that the defendants should have followed the due process set forth in the Exoneration Act to have a substantive entitlement to the money, on the other hand in Alito's concurring opinion he quite explicitly disagrees and posits that the Exoneration Act violates due process:
These stringent requirements all but guarantee that most defendants whose convictions are reversed have no realis - tic opportunity to prove they are deserving of refunds. Colorado has abandoned historical procedures that were more generous to successful appellants and incorporated a court’s case-specific equitable judgment. Instead, Colorado has adopted a system that is harsh, inflexible, and pre- vents most defendants whose convictions are reversed from demonstrating entitlement to a refund. Indeed, the Colorado General Assembly made financial projections based on the assumption that only one person every five years would qualify for a financial award under the Exon- eration Act. Colorado Legislative Council Staff Fiscal Note, State and Local Revised Fiscal Impact, HB 13–1230, p. 2 (Apr. 22, 2013), online at http://leg.colorado.gov (as last visited Apr. 17, 2017). Accordingly, the Exoneration Act does not satisfy due process requirements. See Cooper v. Oklahoma , 517 U. S. 348, 356 (1996) (A state rule of criminal procedure may violate due process where “a rule significantly more favorable to the defendant has had a long and consistent application”).
This is an archetypally typical Thomas opinion, melding both a very literal and narrow reading of the Constitution and laws with a strong preference towards states' rights.
Meanwhile, Alito's concurring (with the majority) opinion is a fascinating read in its own right, building on similar rationales to those of Thomas while using a comparative, devil's advocate approach to illustrate absurdities in both the laws and the interpretation of the majority, yet reaching a pragmatic conclusion that happens to concur with the majority in its final judgment.
Thomas: "It does not follow, however, that petitioners have a property right in the money they paid pursuant to their then-valid convictions, which now belongs to the State and the victims under Colorado law."[1]
I believe in the value of a diverse court, but I rarely agree with the logic of Clarence Thomas.
https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf
Which in the general case is pretty clearly true. If someone is arrested and found not guilty, have their conviction overturned on appeal, etc. they're not in general entitled to payment for lost wages, legal costs, etc. It seems reasonable to consider this a different situation in that it involved a specific fine but I can at least see the counterargument that it's not.
If you consider that it should compensate you for the money it took off you, then Colorado has a law on the books governing the compensation process, which Thomas (and the previous court - the Colorado Supreme Court) thinks you should follow.
The majority opinion seems to be that not quickly returning (and it considered it as returning rather than compensating) the innocent parties property offends their right to due process.
I'm guessing that you're not making any distinction between negative rights (which is what the Bill of Rights and the rest of the Constitution deal with) versus the more modern idea of positive right.
Negative rights are those where the government is constrained from interfering with you; freedom of speech and the right to keep and bear arms are obvious examples of this.
Positive rights are those where we say that a person has an right to GET a thing, and so the government must be obligated to provide it. The Constitution does not guarantee any of this [1].
In that context, it seems correct to view 9A as saying that there exist additional unenumerated negative rights. But trying to do so with positive rights eventually gets into trouble, because there's no clear ceiling on how much of something is due to each person.
So for example, there's a thing going around Facebook with Jimmy Kimmel about healthcare, which has everyone saying that no one should never need to consider finances when their child is sick. This is plainly false in the general case, because it would imply infinite resources. In the real world, there will always be a point at which we must say "no more".
IMHO, given that the Constitution was written in the context of the Enlightenment idea of negative rights, and positive rights hadn't been part of the discussion; together with the fact that the limits of positive rights are thus left completely undefined, I'm quite OK with the Court deciding to keep a tight leash on that.
[1] Although I suppose the right to an attorney when accused is kinda fuzzy. But it doesn't suffer from the problem of open-ended obligations that I discuss later.
That depends very much on your interpretation. Habeus corpus. The right to bear arms. The right to confront witnesses against you. Trial by jury. Equal protection. All those seem like "positive rights" to me.
Furthermore, it seems to me that you are doing exactly what the 9th amendment prohibits: you are extrapolating from the enumerated rights to make inferences about non-enumerated rights, and to conclude that because all of the enumerated rights fit some pattern that you discern, all of the non-enumerated rights must fit the same pattern, and so you can deny and disparage those non-enumerated rights that don't fit your perceived pattern.
Well, no. The 9th amendment was specifically intended to prohibit this kind of reasoning. Some of the framers didn't want a Bill of Rights at all because they were afraid (and apparently rightly so) that people would mount exactly the kind of argument that you are mounting.
I'm not sure you understand the concept. It's never been seriously suggested that the right to keep and bear arms implies that the government must supply a gun for me. The right to habeas corpus doesn't say that the government has to do anything to make me comfortable, just that I retain ownership of my person. Equal protection doesn't say anything about equal outcomes, just that the law must not view any of us differently.
There really is a fundamental difference in saying that the government must not do something (the negative rights angle), versus that the government provide us something (the positive rights angle).
In terms of a contract or in modern welfare state entitlements (such as Social Security), "rights" indeed refer to benefits owed. Kimmel wasn't referring to the Federalist Papers when he made his speech; it was an informal humanitarian modern-welfare-state understanding of "rights".
I agree that there should probably be some limit to the amount an insurance company needs to fulfill claims, otherwise our premiums are likewise unbounded. The NHS and Canadian health systems appear to have rate limiting aspects (perhaps unintended) that have the outcome of bounding costs.
To me this is a total no-brainer: the answer is obviously yes, notwithstanding that the Constitution does not explicitly say so. I don't see any point in quibbling over what flavor of right this is.
The rest of the Constitution discusses various powers accorded to the Federal Government and how it is structured.
That's not "plainly" false, unless you know some medical treatments that cost an infinite amount of money to perform. If we assume that less than 1% of patients are catastrophically expensive, then based on actual data it looks like dropping them all would save less than 20% of total spending, possibly a lot less.
http://www.latimes.com/business/hiltzik/la-fi-hiltzik-iowa-2...
But from a... well, moral perspective (I hate to bring morality into a legal discussion but it is really where I draw my sense of these things), it's wrong because it provides a path for someone who has done no wrong to be harmed without providing a path for them to be restored.
I think it's an interesting argument. But I think you also have to consider why the money is considered to be "in the public pool", and whose interests are at stake when it is. It is clearly in the defendant's interest that the money is still considered a taking as long as he is alive. It is only in the state's interest in the event that the defendant is exonerated or in the case that the money must be tracked explicitly. It is an observational fact that some convicts will be exonerated.
It seems therefore that the interest of the state must outweigh the interests of exonerated defendants in order for us to assume the money can be considered only as part of the public pool after it is taken. When we ask whether it is a compelling interest that the state be able to retain money from vacated convictions or that all convicted money be tracked, it seems that this would be the case only if the state's financial status were dependent on money obtained from criminal convictions. Such a state would seem to resemble pre-civilized governments and it is this assumption that I reject with due horror. The state must not be an organism dependent on judicial takings.
The majority relied on "procedures" and "due process".
Alito focussed on the fact that they were not guilty and obviously had a right to get it back.
Thomas' dissent took the majority to task for not providing a clear opinion as to whether the category of the funds in this particular case was in the same category as attorney's fee and other costs that you clearly do no get back.
Unfortunately I don't think this case provides much of a basis for overturning civil forfeiture.
(NB I am not a lawyer; not even American!)
It ends with the summary:
No one disputes that if petitioners had never been convicted, Colorado could not have required them to pay the money at issue. And no one disputes that Colorado cannot require petitioners to pay any additional costs, fees, or restitution now that their convictions have been invalidated. It does not follow, however, that petitioners have a property right in the money they paid pursuant to their then-valid convictions, which now belongs to the State and the victims under Colorado law. The Court today announces that petitioners have a right to an automatic refund because the State has “no legal right” to that money. Ante, at 8, n. 11. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law. If petitioners’ supposed right to an automatic refund arises under Colorado law, then the Colorado Supreme Court remains free on remand to clarify whether that right in fact exists. If it arises under substantive due process, then the Court’s procedural due process analysis misses the point.
I respectfully dissent.
I'm personally glad it went the way it did, but I'm really not a law type to figure out if it went that way in a good way.
God I hate this judicial philosophy. If legislation was perfect we wouldn't need judges. Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation.
Yes it is, by definition. Advocate for better legislation, rather than expect lawyers to pinky-swear not to use whatever loopholes they find.
An analogy might be: "Every bug or unescaped input in my application is not valid grounds for attackers to pwn my server! How dare they!"
Tic tac toe? Rock, paper, scissors?
Are you suggesting the law, any law, can ever be made so simple?
It is the job of legislators to write laws that are as free from faults as possible. It is the job of judges to protect the people from unavoidable faults in legislation.
We already have that, though, and "sufficienty written" is a very dangerous standard.
The easiest way to guard against "all" malicious input is write a vague law without clauses that demand mens reas, which means that regardless of whether or not you knowingly broke the law, by violating its provisions, you automatically did.
The leeway to "serve justice" also tends to be the leeway to condemn justice or to interpret law in ways it was never designed to account for.
The lawcomic, written by a lawyer, has a good section about the kind of overcriminalization you're discussing:
Most criminal laws have a mens rea component (strict liability is rare), but almost none of them have a requirement of knowing that the act was illegal. "Ignorance of the law is no excuse" is not limited to strict liability offenses.
I'd certainly argue there are plenty of vague, overbroad laws, regardless of the frequency of strict liability's usage.
I'd further argue infrequency actually increases the likelihood that otherwise innocent individuals are swept up in such cases: they have less reason to suspect that they've done anything wrong.
We're heading that way in terms of contracts and blockchain.
And insofar as "the law" is a contract between the citizens and government, you'll find more and more government regulation being implemented in blockchain in the future.
The attitude in your comment, that the law should be interpreted with perfect strictness and machine-like lack of concern for obvious blunders, is in my opinion really hurting the United States today.
I disagree. Code is also designed that way. The humble admission and responsible actions to secure against abuse are the same. The difference is in the specific interpretation timings. Code is a priori deterministic and law is a posteriori deterministic, with exceptions on both sides (code environment or human interpretation changes).
It delves into multiple possible stances regarding the nature of laws. I think Justice Thomas falls squarely into one of the explored stance.
PS: also, an extended version: https://legacy.earlham.edu/~peters/writing/cse.htm (that's the one I have)
Just pull people over for no reason whatsoever, give them a ticket for "enforcement goal of the week," and collect the fines as most people will pay it. If anyone eventually disputes and wins, the local govt still gets to keep the money, since they at some point in time "justly" stood guilty.
Or arrest and convict people of jaywalking, or any other made up charge. As long as you have a judge that will go along with this (the communities in and near Ferguson MO are an example), it's a "great" way to collect money. Just convict them, no matter what.
As civil forfeiture is increasingly scrutinized, it will not surprise me if streamlined convictions and 1 day "time served" sentences become common along lonely stretches of Interstate 80. "There, we fixed it."
Not to mention, perverse incentives would instantly appear like cops worried about their pensions and budget planting evidence on people for convictions. Nice car you got there, shame I found cocaine in it. Now it belongs to the state because a plea is better than $50,000 in lawyer fees to fight a corrupt police department you probably can't even beat. Even if you could, spending $50,000 to save a car worth $10,000 doesn't make sense.
Not that I particularly agree with Thomas, but assuming that it's trivially easy to convict anyone you want of a criminal offense is quite a big leap. (And it doesn't just require a compliant judge -- people could always ask for jury trials).
> The Justice Department's report said Brockmeyer approved the creation of additional fees, "many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared."
> Just about every branch of Ferguson government -- police, Municipal Court, City Hall -- participated in "unlawful" targeting of African-American residents for tickets and fines, the Justice Department concluded.
http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/in...
It looks like it was trivially easy to come up with any scheme they wanted to collect money from people too vulnerable and poor to fight it. If the Michael Brown shooting hadn't happened, the area wouldn't have received the scrutiny it did, and my assumption is that the scheme would still be ongoing. I'm sure this happens elsewhere; the smaller the community and the more chummy the players, the easier it would be.
And this case was about people who had gone through entire non-trivial justice system processes for non-trivial crimes, were convicted, and later had those convictions overturned. It's not about fines and speeding tickets.
Thomas' opinion is very strictly based on the idea that there was once a legal conviction, that was then overturned. That's not something that happens very much in the legal system, and it particularly doesn't happen very much for the small annoying offenses like traffic violations that you're talking about, because it's just not worth the time and effort to overturn them.
He didn't say, "It's cool to fine someone absent a conviction, and then when or if they successfully avoid a conviction, do not give them back their money."
In other words, the petitioners can't prove that they have a legal right to a refund. Apparently there is no Colorado law saying that if your conviction is overturned, the state will refund those fees.
That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision.
Sure, but there's probably no incentive for legislatures to implement this fix. The loophole enriches their constituent law enforcement organizations, while also relaxing their budgetary needs. And most private citizens probably aren't going to care much either way, especially since the loophole can be framed as pro-law and order.
So if the law as written is encouraging abusive behavior from law enforcement, and the legislative incentives are misaligned to prevent the easy fix, how else could it get fixed?
The incentive is the same as the incentive for them to do anything: democratic process and popular pressure. If this is such a no-brainer it should have wide support among Colorado voters. This is much better than having unelected federal judges thousands of miles away declare the issue by fiat.
> The loophole enriches their constituent law enforcement organizations
A. It's not a "loophole", it's simply the lack of any explicit law directing refunds. B. I'm not familiar with Colorado state finances, but I seriously doubt that refunds from vacated convictions would have any significant budgetary impact at all.
> ...if the law as written is encouraging abusive behavior from law enforcement
Again, this isn't "abusive behavior". It's simply lack of a law authorizing what the petitioners demand. I wouldn't be surprised if it was simply that nobody thought to write and pass the law, given the relative rarity of vacated convictions.
Further, the democratic process and popular pressure has little impact on most laws. The context is first personal conviction as most bills have minimal impact on getting elected, next attention as bills are mostly to long and complex to read and understand in their entirety. Sure, a bill might only be ~200,000 words, but this is a diff that's updating other complex legislation which will then get applied in a huge range of complex situations.
So, honestly having a small group which can debug the law in response to specific escalations is not only reasonable, but also vital.
That's literally the definition of a loophole - something the letter of law fails to account for, but the spirit of the law would have intended to cover.
I was writing in a pragmatic register, not a legal one. You can't consider the ethical/practical consequences of the law using only formal legal language - there's no legal definition of what constitutes a loophole in the law, nor could there possibly be.
> Again, this isn't "abusive behavior".
Again, not referring to a legal standard of abuse. If you were arrested and wrongly convicted, had all your assets seized, and then had your conviction vacated but the state refused to return your property, would you feel abused?
The premise which justified taking the property was invalid, thus the state had no legal basis to deprive the victim of property.
Now, if this was a question of the personal liability of agents of the state in taking the money, the fact that they had a reasonable good faith belief that they acted based on a a valid legal premise would probably be a valid point, if governmental immunity didn't make it moot in the first place. But this isn't about that.
Let's assume some drug law is relaxed in the future. Do all prisoners currently serving sentences get released automatically? I don't think so, since they were convicted and sentenced under current law. I believe it would take an additional act of the legislature to release those prisoners. (This Supreme Court ruling seems to make this step unnecessary in the case of money+overturned conviction)
And let's not forget that they won't get anything for the years and opportunity lost while in prison for things that are no longer crimes.
In his view, based on previous precedent, it does not. As a matter of previous precedent, the majorities approach is somewhat legally strained based on the Due Process Clause. But as a matter of policy, the majority's decision seems correct.
> GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER , SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion. GORSUCH, J., took no part in the consideration or decision of the cases.
Gorsuch is from Colorado, and so might have had a conflict.
Pretty sure Gorsuch just wasn't yet seated on the court when the case was being heard.
To understand Thomas's logic, start with Section I of the dissent: https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf. Thomas is not saying that the state should be able to "keep money from the innocent." Thomas's reasoning is roughly the following:
1) The 14th amendment requires the government to give you adequate process before depriving you of a property right.
2) At the time petitioner was convicted, he paid over a sum of money to the state. He lost the property right in that money, and the state gained the property right in that money.
3) After the conviction was overturned on appeal, the state required petitioner to go through a process to get his money back. Petitioner alleges that the process was inadequate under the 14th amendment.
4) To make a 14th amendment deprivation claim, you have to show deprivation of a property right. At the time petitioner sought his money back, he had no property right. That transferred to the state under step (2).
5) Thomas asks: where is the property right that is the basis for the 14th amendment claim? It can't come from the 14th amendment itself, because that only comes into play once petitioner has a property right.
To get around (5), you can theorize that the initial payment automagically become null-and-void when the conviction was vacated. But that would be an unusual result, because legal judgments don't ordinarily have that kind of effect. Say you buy some property, then sue the seller and get a judgment saying you overpaid. You can assert that judgment against the seller to collect, but at most the judgment means the seller owes you money back, it does not automatically transfer the property right in some of the money you paid back to you.
I think the majority is right in that the overall effect of the Colorado law would be a due process violation. But the majority's reasoning kind of requires thinking of the whole process as a black box and not thinking too hard about what happens inside.
yes, because he was deprived of that property right. Vacated conviction doesn't seem to satisfy "adequate process" requirements for the deprivation.
The logic of Thomas's dissent is like accepting the argument in, say for example, physical assault case that the person didn't objected to a beating because his mouth was duct-taped shut.
>You can assert that judgment against the seller to collect, but at most the judgment means the seller owes you money back, it does not automatically transfer the property right in some of the money you paid back to you.
seems you've never tried to collect on a judgement. Once you get the judgement against other party, you identify the property of that other party, say bank account or a real estate, and get a court order for the sheriff to withdraw from the account identified or an order for the county to put a lien on identified real estate of the other party. Such orders are basically orders for the transfer of the property right.
What's the difference between the seller owing me money back and me having a property right in that money? They seem similar to my not-at-all-a-lawyer intuition, what am I missing?
> Ali had previously sold the Chevy but still held title to it and it was registered in his name ..... In order to regain his Chevy, Ali was asked to prove his innocence.
Why does he need to regain "his" Chevy? It said he sold it, so it's not his anymore. Just the title transfer was not registered yet (which in my state is pretty common, especially for junk cars, since the state charges a fee and sales tax to record the transfer).
I didn't read the whole article, the paywall is blocking it but if there is no legal document to prove the sale has taken place, then the car still belongs to the name on the title, regardless of what happened. In other words, it doesn't matter if he got paid 10K for the car, if the purchaser don't have any documents, he is SOL.
I'm not sure how Ali even got involved in this, other than a chance to fuck someone over who had little recourse.
But it's not the purchaser who is suing - it's the original owner, who already got paid.
So why is he suing to get paid again, or get a car back that's not actually his?
http://www.scotusblog.com/2017/04/opinion-analysis-states-ca...
So hopefully they are correct and we'll see a reexamination of asset forfeiture sooner than later.
[1] https://dawgonnit.com/2017/05/02/supreme-court-rejects-guilt...
The problem is that the scope of how it's implemented today is much larger and more impactful. The result is that we have policy at the Federal level that effectively criminalizes cash. Because the legal foundation is sound, it is difficult for the courts to act -- we really need changes in law. That's why law originates from the Congress... to check the executive.
"In Congress, the FAIR Act by Sen. Rand Paul and the DUE PROCESS Act by Rep. Jim Sensenbrenner would both reform federal forfeiture laws so that property owners are innocent until proven guilty. "
An act of congress should not be required to regain constitutional rights. I would much prefer SCOTUS take one of the cases and slap them down at that level to set the highest precedent.
Which is the ridiculous part. You shouldn't be able to charge property with a crime if you can locate the owner.
United States v. Approximately 64,695 Pounds of Shark Fins
United States v. Forty Barrels and Twenty Kegs of Coca-Cola
United States v. Ninety-Five Barrels, More or Less, Alleged Apple Cider Vinegar
One 1958 Plymouth Sedan v. Pennsylvania
United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness
Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri
United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls
United States v. One Lucite Ball Containing Lunar Material (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque
Where did "power over objects" come from? Going strictly by the Latin, in rem means "into the thing" ("into" here marks that the thing is being attacked). "Thing" and "object" are basically synonymous, sure, but power is not mentioned at all.
Jurisdiction = Power [of a court] - https://www.law.cornell.edu/wex/jurisdiction
"The term jurisdiction is really synonymous with the word "power"."
When the property is seized from the owner and sold at auction I don't think the property has been punished in any way, but the owner has been subject to seizure of property without cause. We agree, it's absurd.
https://supreme.justia.com/cases/federal/us/581/15-1256/ is the opinion, https://www.oyez.org/cases/2016/15-1256 has recorded oral argument, opinions and summaries. Good reddit thread https://www.reddit.com/r/law/comments/690jb0/scotus_rules_71... with a biased title but good discussion.
Edit: Thank you for the explanations, especially the fact that they aren't strict yes-no votes (that makes a ton of sense now).
A priori civil forfeiture goes against this countries values but the legal logic in the majority opinion seems like it has some problematic aspects which is why Thomas dissented and Alito agreed but with stipulations.
If Ali sold the car but kept the title what the heck did he "sell"? This sounds like a poor defense against civil forfeiture. It seems like he'd have to claim he cheated the person he sold the car in order to assert ownership. I wouldn't want to touch that case either.
Now if someone had property taken and was later found innocent, would this immediately release the property taken in that particular forfeiture without a 2nd civil court case?