U.S. Supreme Court Puts Limits on Police Power to Seize Private Property
nytimes.com
nytimes.com
Timbs was convicted of possession/sale/whatever, jailed for a year, and fined $1,200. The state confiscated his Range Rover as well.
Timbs sued or appealed the confiscation by Indiana, which he he could prove he didn't buy with drug money. The judge of the lower court of Indiana agreed.
The state appealed the judge's ruling. The Indiana Supreme Court reversed the lower court's decision, ruling that the 8th Amendment did not apply to the states.
The SCotUS unanimously disagreed and vacated the Indiana Supreme Court's ruling. The 8th Amendment does apply to the states. However, that's all that they ruled upon. They didn't not rule on whether or not confiscating the SUV was an excessive fine, and remanded the case back to the Indiana state courts.
Now the state of Indiana will be given an opportunity to prove in Indiana court that confiscating the SUV is not an excessive fine. That seems unlikely, however, since the charge Timbs was convicted of carried a statutory maximum fine of $10,000, well below the value of the SUV.
https://en.wikipedia.org/wiki/Timbs_v._Indiana
Otherwise, yes, Timbs would have to pay. You can file a petition to ask the court to waive your court costs (there's a Latin legal term for it that I believe means "with pockets turned out" or "with pockets empty" but I can't remember it), but your lawyer's time isn't covered by that.
But that doesn't really constitute a good argument that there is a Latin word for telephones.
I know this is probably not meant to be funny, but for whatever reason, in reading it, I couldn't help but laugh.
You can help out too: https://ij.org/support/give-now
Honestly, though, this case is so perfect that I almost wonder if the Supreme Court of Indiana didn't rule the way they did just to force the issue.
> A second option is to await guidance from the Supreme Court and decline to find or assume incorporation until the Supreme Court decides the issue authoritatively. We choose this latter, more cautious approach for two reasons. First, although the Supreme Court has addressed this issue only in dicta, its statement in McDonald that the Clause has not been incorporated is entitled to more weight because it is the Court’s most recent. Second, Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated. An important corollary is that Indiana has its own system of legal, including constitutional, protections for its citizens and other persons within its jurisdiction. Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.
It isn't, on its own, a final judgment on the case, but that doesn't mean it lacks force of law.
The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.
I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one.
Case law is just as much part of the law as statutes are.
This is the fundamental difference between common law systems and civil law systems.
https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
It is, in fact, a self-replicating unit of behavior.
(It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices.
District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic.
When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency.
The courts can also overrule itself in a future court case.
(The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all.
It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
Currently it is the status quo that is choking the news, which is not what I propose...
I don't read snark in your comment btw... I value your contribution
It's like alphabetization, typically after introduction of one person one vote, people become alphabetic, because by the point the populace has made it clear elitism on this facet (voting) is over, the status quo has every incentive to at least educate the populace in reading and writing...
Similarily, I expect moves toward direct democracy (by popular force) to change the behaviour of the elites and the status quo such that "the brutes who will now unavoidably rule us, should at least enjoy a higher level of education with regards to law and so on", and asking questions about law, finding answers, navigating the law, ... will become standard course curricula for the bulk of the populace in high school...
Anyone can become President, and anyone can become a lawmaker.
It takes a lifetime of respect to earn a seat on the Supreme Court bench.
Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.
What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.
Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.
And apparently, neither is lying during your sworn testimony to Congress.
Hundreds of US law professors disagree with you about that respect.
https://www.theguardian.com/us-news/2018/oct/02/brett-kavana...
Digging deep I realize that this is because most of them will retire at 60 after which they either seek lucrative jobs from their political masters or they want to appear on TV debates as "experts". They have even reserved a lot of jobs for their own kind post-retirement. A number of institutions in India can only have "retired judge" as their chief.
Even though there are strong arguments why judges in USA too should have term limits or retirement age, I think there are these issues in our blindspot that need attention too.
The masses are bought in and ignore it
Not one of the judges on the SC questions the correctness of the process
They just regurgitate the things they’ve been taught and studied
There is no more outside the box consideration of the system here than there is in India
And this forum is just as emotionally blind to it as all the others
They do this all the time...in nearly every decision...It's literally their job to question the correctness of the judicial process...
They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
Not the correctness of the US judiciary system itself
Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary
We got James Madison’s version of government, who described the Senate as a legislative body to protect the rich minority from the poor majority. Thus the justice system evolved over time only assessing laws and building its existence on questions of property rights and ownership.
Not saying it’s scandalous or wrong but it’s only concerned with internal consistency, like India.
Look at how the GOP is largely pushing a platform that’s hundreds of years old, with an outcome that resembles the way things were before the New Deal
It’s just old guys advocating for their personal feelings. Exactly what the person from India said :shrug:
> They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
> Not the correctness of the US judiciary system itself
It's literally their job to do work within the system. The SCotUS is explicitly restricted to interpreting the laws that already exist and were passed by existing legislatures. If you want massive, sweeping changes in the structure and nature of a law, you need to go to the legislature or otherwise pick up rifle and start a revolution. It is not the job of SCotUS to create new law. That's why they get so much flack for "legislating from the bench" when they make sweeping decisions. They're not supposed to do that, and they typically only do when making rulings surrounding the Constitution itself and it's Amendments.
Thomas Sowell and Walter Williams both give examples of poker. Imagine a standard Poker game where everyone knows the rule, some win some lose and yet there are no fights. Change the Poker game rules such that the dealer can change the rules at his whim and we will have fights (even though the dealer might not actually affect anyone's earnings).
SCOTUS not going out of their way is good for society.
And that’s exactly what we got. I urge you to look into what the legislative branch does and look into constitutional amendments. The system changes all of the time.
Based on your description of the GOP, you sound upset that the country isn’t more socialist. That’s hardly related to the representatives having the ability to change laws.
>Then why do the laws not reflect the wishes of the public?
This isn’t a direct democracy. The law reflects the super majority of the representatives/senators or the majority of the representatives/senators and the president.
The entire purpose of that is to prevent small majorities from steamrolling in laws. 60% for legalization or whatever topic you want isn’t enough to make a federal law changes if the majority isn’t spread around all of the states as well.
Obama didn’t even want gay marriage when he went into office. People elected him again anyway. I think most of your confusion comes from the fact that you don’t understand representative democracies.
And then even on top of that, the majority leader won't allow a vote unless he thinks the president will support it.
So there are multiple levels something has to go through before it can even get a vote.
On the flip side, the higher courts of our judiciary do have eminent jurists, who are respected internationally. India is considered to have the most powerful judicary in the democratic world. And in my opinion, they have used this power judiciously to make more far-reaching changes to empower our democracy than abused it.
I do have criticisms too (for e.g., I don't like the idea of judges appointing judges as it upsets the delicate balance of power between the executive and the judiciary), but I recognize that despite their shortcomings they do a pretty decent job - in fact much better than most judiciaries of the developed democratic world when it comes to protecting the rights of indian citizens.
No, it just takes the support of the President and a sufficient number of Senators. Of which, by your own argument, anyone can become either; there is either more of a filter than you’d like to pretend on the political branches, or less than you’d like to pretend on the judiciary.
> No, it just takes the support of the President and a sufficient number of Senators.
You're kinda both right. The legal mechanism says that "a lifetime of respect" isn't necessary, but the norms that have evolved around its use say otherwise.
Recent history demonstrates (in the extreme) that norms aren't inviolable, but I think the ones around the competency of Supreme Court confirmees is stronger than most.
In other words, I think you are right that they are mostly-removed from the liberal vs conservative circus... But they are not really removed from those anti-constitutional and anti-liberty politics which both those parties defend.
> Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
Did you actually read this? Have you read any parts of the constitution?
Federal powers are constitutionally enumerated, and those which are not are reserved for the states.
The premise of this discussion you've quoted here -- that the feds have the duty to centralize command and control authority over modest home production of plants for one's own consumption -- is obviously not the intent of the constitution, nor is it remotely American, nor remotely consistent with liberty.
The current legal definition seems to make the assumption that when the founders sat around writing the constitution, one of them looked up and asked for a nice punchy way to say "the complete domain of reality from the ground to the infinite reaches of the heavens above" and the reply was "oh, just say interstate commerce."
umm.. not familiar with this case, but:
from a federal position there is no such thing as legal marijuana, and from a constitutional position federal law trumps state law -
which is not to say i disagree about the sheer human folly of regulating the existence of plants via legislation.
The case itself wasn't about whether federal law trumps state law, though. It was about whether the federal law in question is constitutional in the first place - i.e. that the federal government has authority granted to it by the Constitution to prohibit a person growing marijuana plants for their own private consumption (i.e. not for sale, and especially not for sale across state lines, which would then obviously be "interstate commerce"). The plaintiff was arguing that since it's personal use and not interstate commerce, it's out of scope of the federal law. The reason why state law was relevant is to show the exact nature of harm suffered - if not for federal law, the plaintiff would have access to medical marijuana to alleviate his pain.
SCOTUS upheld an earlier decision from Wickard v. Filburn, which basically states that any production and consumption is "interstate commerce", because it affects market prices - if you grow something for your own use, you're not buying that something on the market, the reasoning went. I suggest reading about both decisions, just to see how ridiculous some of our legal reasoning is. And then keep in mind that those decisions are the only thing that makes many federal laws constitutional - it's not just drug prohibitions, but e.g. the Civil Rights Acts.
So both the left and the right have a stake in maintaining this interpretation - both want to be have broad regulatory authority on the federal level, just for different reasons. It doesn't make it any less flawed or ridiculous, but I wouldn't consider it an example of partisan court bias.
but it seems like there are 2/3 threads being comingled in the case:
a) illegality of marijuana itself b) interstate commerce-related issues pertaining to private growth
the 'b' parts you mention definately seem like flawed, unconstitutional reasoning (e.g. expanding the definition of commercial and therefore regulated to include things that actually arent)
as for 'a' - "And when state legalizes it, all that means is that they're repealing state laws making it illegal."
this can't be true true - otherwise there would be no regulation/taxes on dispensaries, etc. in legalization states, which there certainly is..
so it's not like there is a federal law and a 'blank' at the state.. there are contradicting state laws treating it as legal, and federal ones which say it is illegal..
Liberal judge == living constitution
The "conservative" judges votes align extremely well with each other and with the wishes of the political party that nominated them -- which is itself frequently not "conservative" in the sense of "conserving" something. In both cases, the claim to "conservatism" strikes me as having a lot more to do with group identity than any consistent ideology or approach.
1: https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...
Few positions are more important, and fewer still require a higher standard of morality than a supreme court position. Why settle for less than a spotless record? The person should be beyond reproach, so much so that an invalid allegation could be easily dismissed(during the confirmation, or any time afterwards).
You are placing someone in a position where they are able to influence lives of countless people, with repercussions that can span generations.
How much a candidate raises has been correlated to ability to win.
That eliminates anyone that can’t raise money.
And Kavanaugh’s nomination casts doubt on the third statement. You can be a vile POS, but become a SCOTUS judge so long as you’re networked with the right people.
Key word being correlated. Winners raise more money in large part because people donate to candidates they think will win. So your third statement is technically true, but in a very uninteresting way that you probably didn't intend.
No, it really doesn't. It takes backing from powerful politicians and/or lobbyists. Respect doesn't enter into it.
Somewhat irritatingly, I (and a large number of other American Citizens) cannot ever become president because we were not citizens at birth.
Oaths of office for other federal positions do contain the phrase "so help me God," but so far as I know there has never been a problem omitting it; I had several friends in Federal service do so.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That’s it.
“So help me god” is not part of it, despite some tradition. Not all presidents have used bibles or sworn to a god.
https://en.wikipedia.org/wiki/Oath_of_office_of_the_Presiden...
There's a clause that explicitly bans religious tests for federal public office[1], and a landmark SCOTUS case clarified that state governments cannot do this either[2].
No, in addition to the clause which directly prohibits religious tests, there is no clause which does anything like that; the required oath or affirmation is:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
No supreme being required or even directly relevant. You may be confusing the Presidency with Alcoholics Anonymous, which requires acknowledging a “higher power”.
I do that all the time.
Quite the opposite. The first amendment's establishment clause prohibits the government from "establishing" a religion, i.e., forcing religious on someone.
I'll not argue as to the correctness or morality of such a requirement.
I understand. It's just something that is frustrating. Having two classes of citizenship is something that affects many parts of life, especially if you decide on a career doing anything that requires a security clearance.
Ask anyone "convicted" of a felony. "Accused" of a mental disorder.
I put the scare quotes because most convictions are plea bargains that the accused are bullied into by prosecutors and police stacking and inflating charges and the overall lack of competent and affordable legal representation.
Laws are being passed now that permit the suspension of constitutional rights without due process if you are accused of or ever seek help for many mental disorders.
Sensationalistic fear of the 'boogeyman' has destroyed many of our political processes.
If that were true, more justices would ascend to the court quite close to their deaths. In reality, it's maybe half a life, less if you subtract youth.
As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?
That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".
Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)
This mismatch results in some of this derisive language in the U.S.
Gonna need numbers on that mate, because everything I've read suggests conservatism is correlated with reduced amount, degree and frequency of charitable behaviour.
The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance.
The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied.
Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court.
But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.
They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided.
In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.
The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."
However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].)
So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts.
For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS.
There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3].
[0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-...
I would add some from libertarian or socially-liberal inclinations have criticized SCOTUS as becoming tyrannical in a sense that some socia policy was constitutionally-intended to be "experiments" by the states--something SDOC is championed.
I think a good example of this is the political economy of healthcare, which in my opinion should be handled by the states.
The SCOTUS has, for some time now, been very good at doing the following:
- waiting until there is a "circuit split"
(meaning lower courts deciding the issue
differently) on some kind of controversy
before hearing appeals
- then making the narrowest possible ruling
(emphasis on possible),
- thus often leaving some issues undecided so
that lower courts may develop jurisprudence
on the matter further before the SCOTUS need
clarify,
- which then allows the SCOTUS room to maneuver
if they make bad decisions (the SCOTUS does
not like to overrule earlier decisions,
something they call "stare decisis", meaning
what is decided is decided),
- and they do this by remanding to lower courts
to decide things the SCOTUS left undecided.
As to oversight, yes there is, but it goes un-exercised now for a long time. Federal judges are appointed for life, but they can be left without a court or without a jurisdiction, the various courts' jurisdictions (including the SCOTUS'!) can be narrowed statutorily, court sizes can be changed -- all of this by simple majorities of both houses of Congress and Presidential approval (or veto override). There's also two ways to amend the Constitution to change SCOTUS decisions. But none of these things have been attempted in decades. The last time there was an attempt to use statutory avenues was in the 30s, when FDR tried to pack the SCOTUS, and the Senate killed the project. Before that we'd have to go back to the income tax amendment (the 16th), and before the Reconstruction Amendments (13th, 14th, and 15th).
The most notable case I'm aware of when Congress did away with courts for political reasons, was way back when Thomas Jefferson was President. Congress then closed about half the federal district courts and left as many judges court-less. Congress has changed the size of the SCOTUS, including shrinking it, from time to time, though I think all of that was in the 18th and 19th centuries, and never did they pack the court -- it was always changes of +-1 or +-2.
There's always a risk of court packing. It seems strange that the Constitution allows it by simple majority -- it feels like a bug.
A number of politicians have threatened to pack the court the first chance they get. Given our rather nowadays-frequent wave elections, it could very well happen. The filibuster in the Senate will be no protection for the minority in the Senate the day it comes to packing the court anymore than the filibuster stands for nominations to the court (it no longer does). But it's also not guaranteed to happen. It will be very costly to whichever party does it, and since we've had so many wave elections in recent decades, any court packing scheme simply might not last.
Shouldn't the burden of proof of financing lie with the state before property possession is carried out? It is unfair for the defendant to prove the source of funds for his own property
Or more precisely, evil people will happily violate entire tranches of law while the good people are stuck prosecuting one case at a time, painfully establishing precedent by precedent, and in the meantime the world has moved on.
It has to be less illegal to defend yourself from authority if you feel you're in danger.
One reason might have been if it was the proceeds of drug-dealing. But that reason is not relevant since he could prove otherwise (let alone whether the burden of proof is/should be on him).
The other reason is simpler: States can fine people for stuff, but (according to the USSC) the fine can't be excessive.
https://en.wikipedia.org/wiki/Asset_forfeiture#United_States
I read the official decision from the state court[0] but it's a bit dense for me to get through. It seems like a legal punt, of sorts, in the hopes that SCOTUS would pick up the case.
I'd love to hear someone more qualified break down the state decision.
At this point most of the rights have been incorporated and only a few have specifically not been incorporated, most notably the right to a grand jury indictment. The excessive fines clause was one of the stragglers that hadn’t been decided either way. (The third amendment probably never will be decided.)
I believe cruel and unusual punishment would have come up in method of execution cases, but not sure of the case.
I was going to comment that the real biggest legal problem with civil forfeiture is how it circumvents due process, but it sounds like that was the actual ruling given by the supreme court. I think the title of the article disagrees with the last paragraph. It was actually Justice Thomas who wanted to rule that it constituted excessive punishment, while the rest of the court ruled that it constituted a breach of due process.
Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.
Do you read anything into this? Is there a reason a justice would prefer to highlight the excessive fines provision over the due process protections?
"This may seem like a minor niggling point. It's not.
The Court's recognition of a right to abortion has been rooted in the Due Process Clause. Thomas & Gorsuch's concurrences document their opposition to grounding substantive rights in that corner of the 14th am."
https://twitter.com/stevenmazie/status/1098242972162768901
"Thomas and Gorsuch announce that they would incorporate Bill of Rights through the Privileges or Immunities Clause, not the Due Process Clause. This is a wonky distinction, but one with huge stakes for immigrants. Due Process Clause protects “persons.” P or I protects “citizens.” "
For example corporations don't have a right to free speech because they are "persons" but because we extend the rights of the individuals who make up the group to the group itself.
The constitutional basis for that is not secure.
It's not obvious that your right to free speech extends to secretly paying someone else to speak.
If I leave an iPod in a public park playing a speech, the authorities can remove or disable the iPod, not a violation of my speech rights.
From the ruling[1]:
The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment.
[1] https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf
Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every citizen".
Smart move. :-)
Not having basic protections for non-citizens would be rather worrying, but let's not act like the mere existence of a difference is worth freaking out about.
EDIT: To be clear, I'm not suggesting that Justice Thomas's concurrence not providing these protections to non-citizens would be a good thing. I'm just saying that 'non-citizens should have the same rights as citizens' isn't a position held by any country on the planet.
In my opinion, not having your property taken unfairly by the police is more of a basic right everyone should enjoy, rather than a special right afforded to citizens like voting.
That's fine, but affording no rights to non-citizens would be highly problematic. Some argue the Constitution doesn't protect the rights of illegal immigrants, for example, but it makes clear distinctions by using "persons" in some spots and "citizens" in others.
Persons have a right to due process. Citizens have a right to vote. The difference is very important.
Which is why we have the status quo: the vast majority of rights enjoyed my U.S. citizens and residents are enjoyed by aliens, with some discretion.
The average ruling in a single minor case today is longer than the entire Constitution.
"... The panel affirmed a conviction for possessing a firearm while being an alien unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A)."
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/08/15...
The notion that Constitutional protections cannot apply to non-citizens is simply not true, even when applied to non-citizens being held by the US off of US soil.
My point is that those are different outcomes, not the same; one protects me - a person in the US who is not a US citizen - and the other does not. The difference is also a furtherance of a generally authoritarian idea that non-US-citizens should have not equal protection under the law.
This reminds me a bit of the Roman concept of the pomerium. Anything outside of the arbitrary line deciding what was Rome and what wasn't, was "anything goes."
In the SCOTUS rulings on Guantanamo, SCOTUS went further and stated that they would have ruled the same way if it had been a CIA facility instead of a military facility, so long as Cuba had granted the CIA permission to exclusively use the land for its own purposes.
No, the argument was that foreign terrorists and other non-state enemy combatants were not "subject to the jurisdiction" of the US legal system (because they weren't on US soil when captured, and as non-state combatants that weren't covered by any treaties to which the US was a party) and thus also not afforded its protections. However, as a matter of international law, a country generally has legal jurisdiction over any person physically present in the country, whether present legally or otherwise, excepting specific diplomatic personnel (as defined by local law or treaty).
This was the reason for holding them indefinitely in an military facility located in another country. However, under US law, military facilities are considered US soil, and so persons being held in US military facilities are subject to the jurisdiction (and protection) of the US legal system.
I really hate that usage of the word.
I mean, your basic argument is that Thomas is just pointlessly making semantic disagreements with the majority that would have no effect on this or any other conceivable case because either basis for incorporation produces exactly the same result not only on the present case but all possible cases. While I have a low opinion of Thomas, it's not quite that low.
The 14th amendment was ratified in 1868. The total population of the US in 1870 was around 38 million. The total number of immigrants was around 2 million. The slave population was around 5 million.
The implications of the 14th amendment are clear today and they may even have been clear then. Nevertheless the most pressing, most politically salient issue was the newly freed slaves. In one day (the day after ratification) the United stares gained 5 million new citizens.
I would not be surprised at all if the people involved at what time were a tad bit myopic, with respect to the problem at hand.
EDIT: In fact in 1860, the us census measured 4.1 million people not born in the United States. Is your claim honestly that while the census actively measured this, not a single person realized what birthright citizenship would mean for the children of those 4.1 million non-natives?
Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.
It's the same outcome in this case, but it is rather different in the broader effect; not all people subject to punishment by states are citizens of the US.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
0. https://www.wsj.com/articles/supreme-court-rules-against-exc...
The Institute For Justice (who argued this case, somewhat coincidentally) has a podcast about the 14th Amendment called Bound By Oath. They talk in depth about the Slaughter-House Cases and The Privileges or Immunities Clause in the third episode if anyone is interested in learning more.
Here's a twitter thread about it: https://twitter.com/MDAppeal/status/1098244852721115136
Tl;dr It means that the incorporation only applies to CITIZENS, not persons. So citizens united wouldn't apply to the states, but neither would the bill of rights to non-naturalized immigrants with regards to the states.
Thomas disagrees with this fairly conventional incorporation argument and the idea of the protection as a fundamental right, but feels instead that a protection against excessive fines is part of the “privileges and immunities of citizens of the United States”. This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
All of the justices view it as excessive punishment, Thomas just thinks only US citizens are protected by the federal Constitution against excessive punishment by state governments, whereas the majority thinks states are Constitutionally prohibited from inflicting excessive punishment on people.
Would you have more reading on this? It's something I've wondered about but never really come across a comprehensive answer to. What rights do noncitizens not have that citizens do?
The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.
AFAICT, the Federal courts have not generally adopted this view (though it is popular in some circles, particularly the US Department of Justice); ruling less specifically that the term “the people” instead “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
From Wikipedia, some other examples are the right to be considered for federal employment (most Federal Government jobs being closed to non-citizens), access to US consular officials if arrested abroad, and exemption from certain real estate taxes[1].
[1]: https://en.wikipedia.org/wiki/Foreign_Investment_in_Real_Pro...
The only rights that permanent residents don't have are: a) the right to vote, b) the right to have their permanent residency not revoked for cause (e.g., committing a serious crime). Permanent residents get to become citizens after some time.
Non-permanent residents have fewer rights, and which rights they don't have is generally a matter of law, not Constitution, except that they have all the rights of Due Process guaranteed by the Constitution (i.e., by far the most important ones for them to have), at least as to criminal prosecutions, and often as to civil suits. A typical example would be the right to keep and bear arms, which non-residents generally do not have in most States. I suppose even First Amendment rights might be curtailed for non-residents, though I suspect at most only freedom of association would be, and only indirectly.
But most of the Bill of Rights (the 4th through the 8th Amendments) deals in Due Process, and these rights are available to all persons in the U.S., except perhaps as to immigrant law itself (e.g., a non-resident alien may have much less recourse to fight deportation than they and anyone else might have to fight a conviction).
Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.
It uses at least three different terms, citizens, persons, and “the people” (and the last is the most common where it concerns rights). The precise boundaries of the latter is fairly hotly contested, and the Courts to date haven't given precise guidance (it is clearly broader than citizens and narrower than persons, but the exact boundary is murky; the US DoJ has often advocated for a definition of citizens and some subset of lawfully admitted aliens, possibly only LPRs, but others have taken other positions.)
This is because the Constitution is supposed to be an enumeration of what the government is allowed to do. The limitations are there to narrow the scope of those enumerated powers. In this context, enumerating most rights of citizens would have been redundant. The enumerated citizen rights were those that could be affected by the powers the government was granted.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time, particularly when corporations comparatively have no hurdles at all over the same geographic region. Getting 50 of anything to do something at the same time is nearly impossible. If we want to do something about many significant, widespread problems, we need the power of a centralized Federal government. As the saying goes, the Constitution is not a suicide pact.
Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
No, I don't think that adding more representatives would help the problem, but our political system, invented in the 18th century, is nearly overwhelmed by the sheer volume of people in this nation.
[0]: https://en.wikipedia.org/wiki/United_States_congressional_ap...
No, I don't think that adding more representatives would help the problem
Why couldn't a similar system work well in the US?
[0]: https://en.wikipedia.org/wiki/European_Union#/media/File:Org...
For instance, making drugs illegal (accounts for most federal prisoners) and running social welfare programs (accounts for most federal spending).
If something really is an important power the federal government must have (maybe some kinds of environmental regulation powers?), then make an amendment that clearly scopes the boundaries of that new power.
To what extent do we actually need to have all states do exactly the same? It's a common argument, but there are many independent sovereign states out there that are smaller than many of US states, and they're doing fine solving their national problems despite their size. Sometimes - quite often - that happens with cooperation with other states, but such cooperation does not require an overarching government entity.
Sure, that means that US would not be a state in a sense that, say, France is a state, with a strong national identity and uniform politics. But does it have to be? I would argue that there is no truly democratic way to rule 300 million people from a single center, and decentralization is key to real democracy. Conversely, I don't see why my ideas and values have to be pushed on someone in the opposite corner of the country, but not, say, across the border into Canada.
> As the saying goes, the Constitution is not a suicide pact.
Whose saying? Last time I remember hearing that everywhere, it was to justify stuff like the PATRIOT Act and other post-9/11 abuses.
> Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.
Part of the reason the issue has gotten out of hand is the relative weakness of states to enforce the cost of negative externalities on business. As soon as one state passes regulations, it’s too easy for many companies to pack up and leave for ‘greener’ pastures where the politicians would rather tout economic improvement at the expense of those negative externalities. As a result, problems like this often end up hoisted to the next level of government to solve issues in a more equal manner.
Just look at the ways cities were tripping over themselves to look attractive to Amazon for HQ2 to see this phenomenon in action.
OTOH, if that is the key problem, then why not make feds an arbiter specifically for such externalities? i.e. they'd be the ones establishing whether something negative is actually happening, measuring the impact, and imposing some remedy (either cease and desist or compensation, depending on which one is appropriate).
If we're talking about AGW, say, and carbon tax, then let's have the feds tax the states proportionally to their total carbon output. The states can then pass those carbon taxes onto their residents in various ways - and how exactly they are allocated is then a matter of state policy - but it has to add up.
The great thing with this system is that it's extremely difficult to get 50 states to jump backwards at the same time.
Some places will always remain sane, even in the darkest hours. That is the greatness of a decentralized system!!
This is simply not true. The Founders lived through the Articles of Confederation, in which the founding document explicitly enumerated the only powers the government would have. The Constitution was an explicit rejection of that philosophy, and was intended to create a government with broad powers. The point of the Bill of Rights was to place limits on those broad powers.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
This is also not true. A great many of the Founders considered the 10th Amendment to be meaningless fluff added only to mollify the slave-owners who wanted restrictions on the Federal government's ability to curtail their ownership of slaves.
The multiple attempts by former CC members to pass anti-slavery legislation in Congress in the many decades leading up to the Civil War.
There are a number of other examples, well covered by a number of primary and secondary sources.
And all of those broad powers they wanted the government to have, were explicitly written into the text of the Constitution. Sometimes it was deliberately vague, like the Commerce Clause (although if you showed our modern jurisprudence on that to people who wrote it, they would be horrified). And in the Federalist Papers, there are several instances where some bit in the Constitution is explained as, "yes, this is rather broad, but the government needs it for real world reasons". But it is always enumerated.
It's pretty clear from the laws the First and Second Congress passed that they had an even broader definition of "broad powers" than we do today. (And by the way, the Federal Papers have no legal authority in US law. They're interesting from a historical perspective because they documents an attempt by one politician to sway the opinion of the general public, but they don't form any part of the corpus of American jurisprudence.)
I'm well aware that the Federalist Papers aren't law. The reason why I mentioned them is that they come from the party that was anti-Articles, pro-Constitution and pro-strong federal government. So reading them gives you an idea of what they meant by "strong federal government", and what they considered to be out of bounds.
As for rule of law, there are examples of non-democracies with solidly developed rule of law, like present-day Singapore and Hong Kong, or Britain in the 19th century (and before).
Now imagine the good we can do with real electoral reform (Democrats idea of repealing citizens United is a meager start, but weak lip service to real reform)
What we have now - First Past The Post Voting - https://www.youtube.com/watch?v=s7tWHJfhiyo
Range Voting - https://www.youtube.com/watch?v=e3GFG0sXIig
Single Transferable Vote - https://www.youtube.com/watch?v=l8XOZJkozfI
Alternative Vote - https://www.youtube.com/watch?v=3Y3jE3B8HsE
Mixed-Member Proportional Representation - https://www.youtube.com/watch?v=QT0I-sdoSXU
Electoral reform is just step 1, something we can all come together for. Something no one could possibly be against.
How about if I control who can be voted for?
Of course it matters - https://m.youtube.com/watch?v=Erph1L_XwVQ
bonus video:
This video will make you angry -https://m.youtube.com/watch?v=rE3j_RHkqJc
Would that be such a bad thing?
In some cases the possessor of a right is not identified. E.g., the 1st, 2nd, and 3rd amendments do not specify whether they apply to all persons in U.S. jurisdictions or just citizens. These are the ones that are most likely to be unavailable to non-U.S. persons. E.g., non-U.S. persons are generally not permitted to keep and bear arms within the U.S.
edit: there seems to be some lawyering about the difference between the meaning of 'people' and 'persons' that I do not understand at this time.
And does 1 USC not also say:
"In determining the meaning of any Act of Congress, unless the context indicates otherwise—
the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"
as well? I'm not sure how to align those statements with your comment. Perhaps it's a subject that only someone with a law degree can discern the meaningful difference between the claims?
All people are persons, but not all persons are people. I enjoy Stewart, Colbert and Oliver as much as the next person (vernacular usage, not legal), but they've done a lot of damage to the national discourse on this topic.
People is a plural of person (persons is also a plural of persons); all persons are people just as all people are persons, the two terms are in this use synonyms (people also has a singular use.)
Not all people or persons are part of “the people” as that is used in some Constitutional provisions, but 14th Amendment due process rests on the definition of “person”, not “the people”, and in any case the Supreme Court has found that the distinguishing feature of “the people” is attachment to the national community, not natural (as opposed to artificial/juridical) personhood, so U.S. corporations are, Constitutionally, all of “persons”, “people”, and included within “the people”.
I agree with what I assume you believe - that this ought not be the case, and corporations should be more restricted in their rights than natural persons. But simply claiming it to be so is willful ignorance.
https://www.natlawreview.com/article/court-holds-corporation...
This is mostly a practical matter, so instead of writing a duplicate set of laws for corporations and people, the legislators have said that "for these laws, just apply laws to corporations as you would to people".
...or that's how I've had it explained to me.
Corporations are exactly didtinxt legal persons and that's the central point of incorporation.
> the Supreme Court has never found that they are
It has, in fact, found that they are legally persons and that is the whole point of corporations (though the first cases to do so use the term “individuality” for what a modern writer might term “personhood”.) Key early cases include Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819); Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet 21 U.S. 464 (1823); and Providence Bank v. Billings, 29 U.S. 514 (1830).
But, beyond these early cases using language that might be mistaken by a modern reader, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888), the court, in addressing the 14th amendment, found that “[u]nder the designation of ‘person’ there is no doubt that a private corporation is included.”
I believe current law is that people have the right to peaceably assemble only for the purpose of petitioning the government for a redress of grievances.
It sounds wrong, but there it is.
A corporation, is, by definition, a group of people, yes. And those people who make up the group have rights that are protected by the constitution.
Or in other words, a corporation is the plural form of the word 'person', in many situations.
No, it's not. It is, legally, a single person. It is not a group of people, though one or more other people (all or some of which may also be corporations, governments, or other legal persons that are not natural persons) have authority to direct it as laid out in its charter. But the corporation is not, and is clearly and legally distinct from, any and all those people, individually or in any combination.
Therefore any time you a preventing an entity with a mouth from speaking, you are by definition preventing a person from speaking.
That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.
If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.
The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.
So resident aliens are not protected?
We have laws to punish illegal behavior, but it’s not right that all your property get snatched up too. The most egregious of these cases often involve no due process at all. People who are stopped and found to have large amounts of cash simply have it seized, even if they are never charged with a crime.
Recourse is often slow and expensive. It’s unlikely that this ruling will immediately change the rampant unconstitutional practices many police departments and towns rely on. But it is a step in the right direction. Hopefully, they will be taken to task in time.
laws.https://www.kqed.org/news/11706921/lawsuit-rohnert-park-hopl...
That was 4x the maximum penalty, and almost 20x the fine. How that was ever legal remains confusing to me.
The authorities sometimes break laws.
Do you really expect a random police officer to be a constitutional scholar? Dude should get his car back along with some damages to make up for the time/money he had to waste on this case but I don't think anyone should be going to jail over it.
If the only consequence for misuse of civil forfeiture is that a victim can sue to get their stuff back, nothing will change.
You expect that from citizens, as ignorance of the law is not a defense against not breaking it, but police officers are given a myriad of protections(QI), sometimes jokingly called "The Reasonably Stupid Cop Rule"[0]. I don't think police officers should be constitutional scholars, but immunity gives them an incentive to either not learn or just ignore the law.
[0] (https://blog.simplejustice.us/2016/11/30/the-unreasonable-ex...)
Glad this overreach was rectified but it took a good while to get corrected.
Interesting perspective there. Some people think that heroin dealers deserve to be fully hung, drawn and quartered, their head placed on a spike to be pecked at by the crows.
Others might think that 'it was just a bit of dope, why should he have to forfeit anything for that?'.
The car is potentially proceeds of crime it also enables the crime of dealing to be carried out. A reasonable case for him forfeiting it can definitely be made without that being the police preying off the 'victim'. In the UK any police action that leads to people losing stuff as it is deemed proceeds of crime goes to the crown, i.e. the queen, rather than to the local police department. In the USA you need something similar so that the police can't be accused of being on the take.
Then the state must prove that case rather than it being in implicit assumption.
The car was reliably documented as being purchased from his father's life insurance proceeds. There was no question of it being potentially purchased by illegal means.
Far more importantly, the entire question is irrelevant: we have standardized maximum fines and the burden of proof for very good reasons. Civil forfeiture skips both, making a mockery of the justice system for profit.
Those who believe current punishments for a given crime insufficient should seek to alter the law, whereas exorbitant forfeiture devalues the entire purpose - it serves neither as effective discouragement (being utterly arbitrary and unrelated to criminal magnitude) nor to rehabilitate (rather, the reverse, as departing inmates' tendencies to return will only be exacerbated by forfeiture-induced poverty).
This is why it was such a perfect case for the Supreme Court to rule upon. It was clear that the only justification the state could give for the confiscation was the single conviction.
Cheers to Timbs for being willing to take this all the way to get such an important ruling!
His hands also enabled the crime to be carried out, should they be chopped off?
en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States#Civil_versus_criminal_forfeiture
Is that about right?
EDIT: Also you should tell the New York Times. "Criminal forfeiture" does not appear in the article, though "civil forfeiture" does.
What you're saying makes sense, but I'm not seeing it reflected in any of these sources, so I'm doubtful now.
If it had been criminal forfeiture, they would have had to show the SUV was purchased using drug money proceeds. Instead, they pursued the civil forfeiture path because it has a lower standard of evidence (more likely than not rather that beyond a reasonable doubt). See page 1 of the opinion, which explicitly states the case is about civil forfeiture...https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf)
This it's possible for massive injustice to happen for decades before we have a resolution.
This is one of the reasons technology can be so frightening because there's no case law and the rate of technology is exponential which means there is the potential for GREAT evil to happen without any resolution except to fight it out and get it in front of the Supreme course.
But even a more functional and productive legislature does not have the same bandwidth to look at individual ambiguities, nor the mandate to do so, thats found in the federal appellate courts. Moreover, the reliance on case law does not remove the legislature's ability to adjust the statute when they believe that case law has got things wrong.
Please correct me if I'm missing something, but I see civil-law jurisdictions as having strictly fewer resources to clarify ambiguities in the law when compared to common-law jurisdictions. Although some civil-law jurisdictions happen to also have more productive and responsive legislative and regulatory bodies, as far as I can tell, that's unrelated to their use of civil-law.
In civil law jurisdictions, the law is what the legislator says it is, no more, no less. What you write is what the law is, period. Judges can take each others advice and try to apply it consistently, but they can't go beyond or against what's written.
In common law jurisdictions, the law is ancient and practically unknowable. Your laws can be struck down for being out of whack with some older precedent, or it can be re-interpreted to be something better or worse than it is. It is common in common law jurisdictions for legislators to poop out something vague and inconsistent and then rely on the courts and the regulators to turn it into actual policy.
But on the question of the weight that precedence carries: I'd be curious how you feel about federally enforce integration of schools as a result of Brown v. Board of Education, or abortion as a right thanks to Roe v. Wade, as two examples of seminal increases of rights resulting from the heavy role of precedence.
Personally I'm a bit of a hybrid in my own opinion. I'm partial to the sentiment that the legislature is the supreme branch of the Government, being the representatives of the people. So in principle, I'm opposed to drastically new doctrines arriving by way of court ruling, especially when they seem a little too "creative" and go outside the scope of interpreting existing law and statute into the territory of what "ought to be law". I prefer that such significant changes be a matter of federal statute, or when they're a matter of novel constitutional interpretation, that they originate in actual constitutional amendment. (Though even then in the case of federal statute, there are very real questions about how and when the federal Congress may override the states, and jurisprudence/precedence has been an important part of working out those questions).
But on the other hand, I am strong a believer that once a court with sufficient scope and jurisdiction has ruled, and a further appeals process is either at a dead end or would be too injurious for various reasons, then upholding the rule of law is of preeminent importance to the stability of society against the breakout of violence or factionalism. So, for example, in the case of Roe v. Wade, I feel the ruling was far too creative and far too tenuous in its actual references to the Constitution. Nevertheless, it is now the law of the land, and if I want the other protections the government provides and protects for me, I feel it would be hypocritical to flout that law just in the cases that I prefer. I actually feel that the outcome of Roe v. Wade was morally egregious; but I won't rebel against it or seek redress outside the established legal order unless I feel ready to morally take responsibility for the potential consequences of anarchy or of violence outside the civil order. Of course, not every question of civil disobedience is realistically divisive or pervasive enough that civil war is likely if I or others rebel. But civil war and anarchy can be the product of a thousand cuts, as it war, and if I had to oversimplify and take it to an extreme, I would say that I do not feel morally justified in flouting a nationally established law unless I feel sure that even the risk of widespread death and war might be warranted. Even with ongoing inequities and injustices (sometimes severe and chronic) in American Society, I still personally feel we generally (generally!) enjoy such a magnitude of protection, liberty, and privilege in this country, and I'm not sure that risking that is truly moral on the balance.
What is scary is that that's not the platform people run on, or win elections by running on.
It was actually a giant question when trump came into office whether he would start arresting people working/running the legal pot shops in Colorado/etc.
So, there are a lot of other cases, where statutes are simply not enforced, but haven't been removed due to lack of political will. Sodomy/etc laws are another area, where they remain on the books despite a number of supreme court rulings declaring various aspects unconstitutional. That means its quite possible depending on where you live frequently performed acts, not explicitly allowed by the supreme court are actually illegal.
Random google hit about "fornication"
https://www.nbcnews.com/news/crime-courts/virginia-bill-decr...
The modern conception of the veto as a political power rather than as one of constitutional defense was invented by Andrew Jackson.
Also, "I am not going to use an unjust power that I have" is hardly an abdication of their role, it's just a choice made using the power of the office.
Until the next DA comes in... Being seen as "tough on crime" is what gets the votes, sadly.
Problems caused by tech often have tech solutions as well. I think it's a mistake to assume the justice system is the best place to address "evil". More evil and injustice is addressed by individuals, innovation and grass roots movements than the courts.
I'm not sure what's so frustrating about this in principle. It moderates a rush to judgment and lets people work out details, corner cases and flaws of laws.
There's nothing stopping legislatures changing statutes in response to court cases.
(This is not meant as a defense of civil forfeiture which I consider an abomination).
The logic behind these cases has always baffled me. How do courts get around due process requirements of seizing claimed property like that?
[0] https://en.wikipedia.org/wiki/United_States_v._$124,700_in_U...
https://www.law.cornell.edu/supremecourt/text/509/602
1. Forfeiture under §§ 881(a)(4) and (a)(7) is a monetary punishment and, as such, is subject to the limitations of the Excessive Fines Clause. Pp. 2804-12.
(a) The determinative question is not, as the Government would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal. The Eighth Amendment's text is not expressly limited to criminal cases, and its history does not require such a limitation. Rather, the crucial question is whether the forfeiture is monetary punishment, with which the Excessive Fines Clause is particularly concerned. Because sanctions frequently serve more than one purpose, the fact that a forfeiture serves remedial goals will not exclude it from the Clause's purview, so long as it can only be explained as serving in part to punish. See United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487. Thus, consideration must be given to whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under § 881(a)(4) and (a)(7) should be so understood today. Pp. 2804-06.
(b) A review of English and American law before, at the time of, and following the ratification of the Eighth Amendment demonstrates that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment. See, e.g., Peisch v. Ware, 8 U.S. (4 Cranch) 347, 364, 2 L.Ed. 643. The same understanding runs through this Court's cases rejecting the "innocence" of the owner as a common-law defense to forfeiture. See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683, 686, 687, 94 S.Ct. 2080, 2091, 2093, 2094, 40 L.Ed.2d 452. Pp. 2806-10.
(c) Forfeitures under §§ 881(a)(4) and (a)(7) are properly consideed punishment today, since nothing in these provisions contradicts the historical understanding, since both sections clearly focus on the owner's culpability by expressly providing "innocent owner" defenses and by tying forfeiture directly to the commission of drug offenses, and since the legislative history confirms that Congress understood the provisions as serving to deter and to punish. Thus, even assuming that the sections serve some remedial purpose, it cannot be concluded that forfeiture under the sections serves only that purpose. Pp. 2810-12.
2. The Court declines to establish a test for determining whether a forfeiture is constitutionally "excessive," since prudence dictates that the lower courts be allowed to consider that question in the first instance. P. 2812.
:-)
Claimants Harold and Kathleen von Hofe appeal from a civil judgment ordering the forfeiture of their home, 32 Medley Lane. They contend the forfeiture violates the Excessive Fines Clause of the Eighth Amendment, which "limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense." Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (internal citation and quotation marks omitted). We affirm the forfeiture of Mr. von Hofe's interest in 32 Medley Lane, but not the forfeiture of Mrs. von Hofe's interest. Because the extent of the forfeiture bears no correlation either with Mrs. von Hofe's minimal culpability or any harm she purportedly caused, the Excessive Fines Clause precludes forfeiture of her entire one-half interest in 32 Medley Lane.
On a related note this is one of the things that annoys me about trying to talk about legal things on the internet, often people just quote cases directly without saying anything about what it actually means! Then to try to understand what is trying to be said I have to spend 20 minutes looking up various legal jargon to try to piece together what's being said in the case. I understand that pretty much everything is built on case history in the legal world but just quoting cases is tough to parse.
The original civil forfeiture practices were put in place at the height of "the war on drugs" in the 80's as I recall. The rationale was you had drug dealer types that were successfully evading prosecution on the tougher criminal standards of proof while also flaunting the wealth they obtained from their drug related businesses. So the idea was you could have a civil process with a lower standard of proof than the criminal ones with which could punish them.
Of course, as the old saying goes, "the path to hell is paved with good intentions." and you get cases like this or worse even.
I contribute to the Institute for Justice for just this reason.
No, they were in admiralty/customs law and predate the US, but came along with the body of law the US kept at it's founding.
There was some new activity around Prohibition.
Then big activity starting in 1970 around the drug war.
(That's for federal civil forfeiture, while state level civil forfeiture has the same pre-US history, the later evolution varies by state.)
The big push in my lifetime was the big push around drugs. My family was involved in politics in the early 80's (I was fairly young at the time). I recall a lot of "get tough" political talk around that time and some touting establishment/expansion of civil forfeiture for these purposes.
In truth, while understanding the history is important, I think that is ultimately secondary to what needs to be done with it now. It's a backdoor to punitive recourse that bypasses legitimate interests of criminality and due process. It's an abomination.
Wow, this is pretty big. They just extended constitutional protection of this clause to lower levels of government.
Sometimes it gets into a weird dynamic where the lower court knows that the Supreme Court would overturn their decision, but there isn't precedent, so they deliberately make a ruling that they expect the Supreme Court to review (and overturn) on appeal.
The 14th amendment made this possible, but until the supreme court actually rules on a given right, there's no case law to compel states to treat the right that way.
Another relatively recent example of this is McDonald v Chicago that incorporated the 2nd amendment against the states.
It's my favorite charity, whose missions include protection of private property, economic liberty, and the first amendment; and their results speak for themselves.
Ditto punitive damages in court cases (where the defendent pays, say, $3M in restitution but say $500M in punitive damages because they could easily afford the $3M and need to suffer enough to change their ways). Why doesn't that money go into the government general fund?
Then the local law enforcement agencies "partner" with the feds and the forfeiture goes through the federal govt, and the local law enforcement gets a kickback.
This practice of kickbacks to circumvent state law was limited by the previous US President, but was now being un-limited and expanded under the current one.
One of my friend's dad had a hip surgery and was bed bound for a few weeks. The family had to be at work so they hired a live in helper who was an older woman in her 60s.
This older woman's story was a tragic one to hear.
She had immigrated from Asia to US with her husband and family and had managed to buy a 3bed house. Well life happened and they ended up divorcing in her 60s, and she ended up as owner of the house.
With no income and no real skill, she rented out rooms in her house to pay bills. One renter was a drug dealer. When he was arrested, somehow the lady was dragged into the case and she ended up losing the house to the police, due to this seizure of private property. This was the first time I heard about such practices.
With no house and no other choices, she had to turn to working as a live-in-helper to avoid becoming homeless.
I hope all properties seized through such cases are returned.
I've not read all of the decision yet, but it seems that any decision about retroactivity was left for later. That will now lead to a bunch of fun cases where plaintiffs demand their property and monies back, and the cities and States will have a hard time ponying it up. Localities and States that play fast and loose with the Constitution should pay a steep price when it later turns out that the SCOTUS gets to make the obvious ruling. That will teach the cities and States to not violate the Constitution willy-nilly. It was obvious to anyone who bothered to read the Constitution and Incorporation case law that civil asset forfeiture was on very thin ice, both, as a matter of jurisprudence, and as a matter of plain reading of the Constitution.
IANAL, but at first glance it seems that such cases would be unaffected by this ruling. No fine is being imposed that could be considered excessive under this ruling - the person is simply failing to claim their property.
The whole asset forfeiture without any charges being filed always seemed really sketchy because in the end you're still taking assets from a person (so long as they're claimed, eg maybe if they find a pile of money in an abandoned drug lab a seizure would be valid if no one comes forward saying it's theirs at which point they should charge the person with crimes and seize the money after trial).
IANAL, but I see 2 reasonings:
If seizing $40000 for <insert any crime/infraction, like going 5MPH over the speed limit, where max penalty is let's say $1000>, wouldn't it be excessive if it's seized for doing absolutely Nothing (suspicion of a crime: max penalty = 0 jail, $0 fine) ?
And more specific to your point: if maximum penalty for a crime only involves jail time and $0 of maximum fine, wouldn't any seizure of cash/property be excessive since it's far larger than $0?
Originally, they had the phrase "life, liberty, and property", if I recall, but "happiness" sounded more poetic or something in the Declaration of Independence. They definitely had protection of property from the government in mind when writing the Constitution.
Here is the ruling in full if anyone is interested.
—edited, correct case:
https://apps.oyez.org/player/#/roberts10/oral_argument_audio...
My assumption would be that those seizures would have already had to pass the constitutional muster because they were federal cases. This is simply the SC stating that they interpret the constitution as being the law of the land, and that the states can't be more punitive than the feds. That money will still be there.
https://slate.com/news-and-politics/2019/02/clarence-thomas-...
Our rights are so unassailable that I need to repeatedly pay a non-negligible amount of money to the government bear arms and get the approval of my local police chief if I want said arms to be reasonably modern. /s
Some animals are more equal than others. Some rights are more unassailable than others. At least I can bitch about it on the internet and nobody's quartering troops in my home (edit: yet).
Just 10 years ago, it wasn't clear that you as an individual actually had that right, as it pertains to state restrictions - things have certainly improved.
Edit: I guess my original point I failed to make is that the courts have actually affirmed less rights than most people realize, but when they do (finally) do so, they tend to stick around.
Well-regulated militia. Not sure if you would qualify as a militia, but the regulation part seems to be working, right? :)
Even better: It's a unanimous decision. The Supreme Court is not even close to thinking that this was OK.
(Yes, Thomas agreed with the decision, though he wanted to state that he got there by a different route. That's not bad - it gives two distinct reasons why the ruling is correct, which is better than just one.)
In at least one of those cases I think it would have to be the estate pursuing it though.
The trial court ruled that seizing the Land Rover constituted an excessive fine under the 8th ammendment, so was not protected.
The state supreme court ruled that the US supreme court had never said that the 8th amendment applies to state governments.
The US supreme court just said "Ok, now it does"
Now state trial court judges can use the 8th amendment to deny civil forfeiture attempts. It also now serves as a basis to appeal civil forfeiture rulings.
While this seems like a positive ruling, all it does is extend the rules that cover the federal government to the states. Given the abuses of the federal governement, I don't see much hope for this ruling changing anything.
>...the Indiana Supreme Court ruled against Mr. Timbs, saying that the Eighth Amendment’s prohibition of excessive fines did not apply to ones imposed by states.
Does anyone know which rights people assume they have but don't because the protection only applies on the federal level?
Sadly they haven't updated with the decision yet.
Thomas is not far behind with: " As a constitutionally enumerated right understood to be a privilege of American citizenship, the Eighth Amendment’s prohibition on excessive fines applies in full to the States. "
In Philadelphia, forfeiture proceeds once accounted for 20 percent of prosecutors’ budget, while agencies in New York and California tended to take in the highest sums, according to the Institute for Justice."
Based on one very quick reading of the case, my understanding is:
1. Defendant ("D") purchased a $42,000 Land Rover using funds from a life estate policy covering the life of his now-deceased father.
2. D sells $225 worth of heroin to undercover cops. Ends up paying ~$1200 in fines, one year on house arrest, 5 years probation
3. Max penalty in Indiana for his crimes is $10,000
4. Cops seize his Land Rover, arguing it was used in the performance of selling heroin.
5. He sues the State of Indiana, arguing that the seizure is an excessive fine.
6. Trial Court and Appellate Court rule in D's favor. Indiana Supreme Court reverses. D appeals to US Supreme Court.
7. Supreme Court rules that the 8th amendment protects against excessive fines, and that because the rule against excessive fines is part of our national history and tradition, the 14th Amendment makes that part of the 8th amendment apply to the states. Further, excessive fines can be used for silencing political enemies and income generation, rather than being a legitimate part of the process of "retribution and rehabilitation" that we want the justice system to provide. When a State's actions benefit the State, the Court will carefully scrutinize those actions.
8. State of Indiana tried to argue that while "excessive fines" are part of the 8th amendment, it does not apply specifically to civil in rem forfeitures (aka property seizure).
Supreme Court cites a case clarifying the way the analysis is done--only the broad category of "excessive fines" is reviewed, rather than picking out very specific instances of fines, like property seizure.
9. This was a unanimous decision. Technically it was 7-0 with 2 concurring opinions. The two concurrences were Gorsuch and Thomas, who both agreed with the outcome, but said that a different part of the 14th amendment (privileges and immunities) is what should be used, rather than what the other 7 relied on (the due process clause).
10. The case was remanded to Indiana Courts for rulings consistent with this opinion. The Supreme Court answered only whether excessive fines, barred to the US government by the 8th amendment, also applied to the States through the 14th amendment. It did not answer whether the seizure of the Land Rover was actually excessive. Indiana will (get a chance) to decide that.
Based on my reading, it appears that the avenue for property seizure is based upon fines defined by statute. To perform a civil asset seizure, a person must be convicted of a crime. If they are convicted of a crime, the seizure must not constitute an excessive fine. Is this how others interpreted the ruling?
This is very unclear to me. I can see how that could be read into the decisions, but I don't think that's what they are actually saying.
This case did not involve "civil forfeiture" but "criminal forfeiture" since the property was being seized as part of a criminal conviction:
https://www.washingtontimes.com/news/2019/feb/20/court-const...
Weird weird reasoning... "I don't have the stuff I want, so I should be able to steal the thieves things"
[1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
Edit: I'm not opposed to this article's longevity, by the way. Far from it, it is a very important topic.