The Constitutionality of Civil Forfeiture (2016) | Hacker News Reader

The Constitutionality of Civil Forfeiture (2016)

yalelawjournal.org

105 pointsluu115 comments

This, along with the private prison systems, creates perverse incentives in criminal justice.

It should be noted that the DOJ started phasing out private prisons last year, and most states don't have any significant number of people in private prisons: https://www.sentencingproject.org/publications/private-priso.... Additionally, the prisons folks tend to hear about in terms of abuses, like Rikers in NY, are good old public prisons.

Private prisons are good at silencing prisoners.

[citation needed]

https://www.fedemploymentlaw.com/blog/2022/03/a-spotlight-on...

Google is there for your further investigation beyond the first result.

So the page you linked is from a plaintiff’s law firm, talking about the Federal Bureau of Prisons, and doesn’t say anything about private prisons. The first article linked from that page is about sexual abuse at FCI Dublin. That sounds terrible, but it’s public servants employed by the federal government running that “rape club”—members of the American Federation of Government Employees.

I didnt even look at the link. You are remaining ignorant intentionally then drawing a line in the sand. GL with whatever.

I believe the timeline is that Obama started phasing them out, Trump halted that, and then Biden started phasing them out again. Good reminder that executive action isn’t worth the paper it’s written on either way.

(Perhaps most importantly, most private prisons are not federal)

Seems like they just pivoted:

> Among the immigrant detention population, 40,634 people – 81% of the detained population – were confined in privately run facilities in 2019. The privately detained immigrant population grew 739% since 2002 to 2019.1) Biden’s executive order does not limit private contracts with immigrant detention facilities.

Oh wow, that’s more than double the non-immigration federal private prison population

> Good reminder that executive action isn’t worth the paper it’s written on either way.

That doesn’t at all follow from your previous statement that the executive orders of the last three presidents regarding private prisons have in fact been followed

You are right, a better way to look at it would be that only the Democrat executive orders have been worthless since the federal private prison contracts that were already signed pre-Obama action (or signed during Trump admin) are not instantly dissolved by their executive action.

Rikers is a jail, not a prison. It might seem like I'm being pedantic but when you're talking about problems in the criminal justice system it's important to recognize the difference between the two and how the problems and solutions may be different.

For someone from Europe...what's the exact difference?

A prison is usually run by the government. A private prison is run by a corporation hired by the government; payment is usually prisoner * time.

It's understood that the incentive for the private prison is to spend as little on the prisoners as possible, because the rest is profit; although I understand some contracts regulate this.

I meant prison vs. jail. It seems mildly blurry to me considering that in my country we do have some distinctions between different types of detainment facilities but from what I grasped, the distinctions are delineated somewhat differently in the US that they are around here.

First link from google:

If you want to be specific jail can be used to describe a place for those awaiting trial or held for minor crimes, whereas prison describes a place for criminals convicted of serious crimes.

I see that someone answered, but the cultural feel is that jail time is anything from a few hours to a few years for reasons that could include public drunkenness, assault, prostitution, or just awaiting trial, it's kind of ambiguous what it means when someone was in "jail", but it could really be no big deal. Most cities or towns would have a jail.

Prison is a bigger deal. A prisoner was convicted for something unambiguously bad, and there is this cultural expectation that they have become somewhat hardened or institutional in prison. A state or Feds would run a prison.

While I've known people to be in jail for longer sentences than prisoners, the expectation is that prison sentences are much longer.

I'm speaking only to the social meaning of the two concepts, which might help to understand the underlying understanding that Americans share about this difference, but the actual legal realities are no doubt quite different. Most of us are pretty naive about our legal system.

Ah, this is interesting. I thought we had a somewhat clearer distinction in my country since we call "věznice" ("prison", presumably) the facility where you serve your sentence, and we call "vazební věznice" (literally "detention prison", I guess?) the facility where you're detained before your sentence and while your court case is pending. This would seem to indicate that these are separate facilities. But then I went to check the list of "detention prisons" (there's like nine of them or so) and it turned out that there's a wing for sentenced prisoners in pretty much all of them. So in fact our "detention prisons" would seem to be like US jails in function (with the exception that drunk people don't end up in jail -- they're taken to "záchytka" instead: https://en.wikipedia.org/wiki/Drunk_tank#Czech_Republic).

Having said that, the operating term is still "věznice" here; there's no word with different etymology for it. Colloquially, it's called "vězení" -- we have a form of limited diglossia in my country where you commonly wouldn't use formal names of things in normal speech without sounding weird, so some phrases are somewhat different in speech than they often are in writing. And additionally, while you would say "byl jsem ve vězení" ("I was in prison") after serving a sentence, if you were detained before sentencing, you'd say "byl jsem ve vazbě" ("I was in pre-trial detention"), NOT anything like "Byl jsem ve vazebním vězení" ("I was in jail"). So we don't really have this distinction you could make between "people who did unambiguously bad things" and "people who did some light infractions". Basically you have no way to make it sound like what you did was no big deal -- everyone convicted is a prisoner and that's it (if institutionalized, that is; not after a suspended sentence, fine, or community service of course). But in American English, you apparently do. Interesting.

I compared the Czech drunk tank with what it says about the US and despair for my homeland.

Well, possibly... They seem to be well designed institutions (https://english.radio.cz/new-drunk-tank-opens-prague-8084119), although I've never had the pleasure of experiencing it. ;)

My homeland being the US, which has a notoriously dysfunctional incarceration system. It's amazing that the Czech drunk tank is concerned with treatment!

We have lots of practice for that treatment: https://landgeist.com/2022/03/18/beer-consumption-in-europe/ ;)

You are totally right

Prison means you’re going away for a while. Jail means you’re awaiting trial or have a minor sentence to serve for something like failing to pay a fine, vandalism, etc. Jail is also usually operated locally by a city or county while prison is state or federal.

I agree that’s true in general. But people can be in Rikers for months and sometimes years (average is over 9 months). So the capacity for the government to abuse prisoners is demonstrated: https://nymag.com/intelligencer/2014/08/8-appalling-stories-...

I don’t think we should have private prisons, but the level of focus on them is about politics. It’s an issue that unifies the economic left, who support unions and oppose privatization but may or may not care about prisoner abuse, with the criminal justice movement.

But at the end of the day, most prisoners (over 90%) are not in private prisons, and there is little evidence that private prisons are worse than public prisons. The reality is that our government run, union-staffed prisons are really bad. But prisons are a major source of jobs, and public unions that represent prison employees are powerful—and Americans are punitive—so it’s difficult to tackle the real issues.

In Justice period. The victims often have no relation to crime or criminal prosecution.

It's not a bug, it's a feature. The system is working as intended. It is no accident that the US has #1 incarceration rate on the planet. A significant portion of the population and and even higher portion of those in government believe manipulation and control of certain groups in the population is more important than any notion of justice or law an order. Their love for their country pales in comparison to their hatred and greed.

> The victims often have no relation to crime or criminal prosecution.

What does this mean?

Somebody else used their property to e.g. transport contraband. Often enough, stole it.

Wasn't long ago a twin engine Beechcraft was stolen, used, and confiscated. The owner never got it back because the DEA argued they needed it.

Let's say someone smoked weed outside your house and right off your property, your house can be taken by the police even if you have no relation with the person and they did not enter your property because your lack of relationship or their history at your property is contested by the government and your house itself is the accused and the evidence therefore being an inanimate object that can't defend itself it now belongs to them. Can't make this up lol

But, I mean, you did just make that up.

The fact that asset can be seized without any due process based on suspicion alone? How did I make that up? That's what the whole topic is about.

When they outlawed general slavery, they specifically enshrined the type of slavery taking place at state penns every day.

As a current prisoner, one of the nice things about private prisons is that they are so thirsty for profit that a lot of them bypass all the asinine rules about security that government prisons have in order to sell you anything and everything, e.g. games consoles, steel-stringed guitars, etc.

So, while you are more likely to come to grief in a private prison due to them under-spending on guards, health care, physical plant, etc, you will die in luxury as long as your family have money to send you.

And let's not forget the plea bargain. Very few other places use it, and those that do, use it a very tiny fraction of what the US does.

Please bargains themselves aren't terrible. They're only bad because the trial wait times and bail conditions are so bad that innocent people are accepting a plea bargains. If the rest of the system was fair, like with reasonable bond and not waiting years for a trial, then it could still be a valid tool. I won't hold my breath though.

Although I am not a lawyer, One weakness I see in this analysis is that it is taking as precedent things enforced mainly extra-territorially (smuggling) and using it to justify actions that have been mainly enforced domestically (civil forfeiture).

I personally would have a lot less problem with civil forfeiture if it were mainly something enforced at the borders. If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling.

I do have a bunch of issues if someone is driving along in the US, gets pulled over and then gets his car confiscated.

The Constitution and Jurisprudence has made a distinction between actions performed extra-territorially and domestically.

This analysis ignores that distinction and as such IMO does not establish that civil forfeiture as practiced currently is constitutional.

EDIT:

One example of this distinction is piracy. When America was first founded, pirates captured on the high seas were often summarily executed. However, the practice could not be used to justify the police doing that domestically.

> If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling.

But in this case, the person could be arrested and it should be (is?) possible to confiscate the possessions they have on them. But the confiscation should be "against the person", not the object. And if the judicial system can't prove the person was guilty of a crime, and that those possessions were involved, then they should need to return them.

The way things currently work, that same person could be coming across the border with $20,000 in cash on them. The police see it and decide it _must_ be crime related because "who would carry that kind of money on them for any other reason" and confiscate the money... all without actually charging the person with a crime.

And that's bad. And the fact that it's a border issue is irrelevant. At most, the border officers should be saying "we're not comfortable with you bringing that much money over the border in cash, you are denied entry", and sending them back along their way.

Importing cash has other limitations, so your $20,000 example is a poor one. Specifically, imports of financial instruments of $10,000 or more must be declared, following anti-money-laundering laws.

Fun story, you can declare that import of cash. And police can still suspect it of being of criminal origin or purpose.

I think you've hit on the most significant objection to this analysis. The paper even distinguishes between cases decided by the admiralty and "at law," then discards that distinction to push the idea that forfeiture inside of clearly demarcated judicial jurisdictions has precedent.

The smuggler with the car confiscated is a criminal case, not civil forfeiture. The problem is the civil forfeiture with no case.

> mainly something enforced at the borders

Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary."

Roughly two-thirds of the United States' population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That's about 200 million people.

Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area.

Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose.

https://www.aclu.org/other/constitution-100-mile-border-zone

There is a huge difference between confiscating a bunch of cocaine and confiscating a car. But I do agree that crossing a border is different than not crossing a border (and should be different than simplyb being within 90 miles of the border)

I have to ask on this issue:

Who is in favor of civil asset forfeiture and what is their politics?

When John Oliver airs an episode about it, and Breitbart publishes an oped against it quoting Rand Paul, you can bank on the American public being against it.

The justice system. The unelected police, who profit directly, and the unelected prosecutors and judges who have intimately friendly relationships with those police. When police get a whiff that action could be taken against this funding source, they threaten to drag the politicians as anti-police, threaten stop-work actions, etc. It isn't about what the people want. We live in a police state.

The laws in the US are made by the legislature. If it was as widely opposed as some people believe, it would be done with. The problem is that law-and-order types are always going to side with law enforcement, especially when it concerns them having more power.

It's probably that it doesn't affect most people personally so they don't care, or they have bigger priorities. The legislators don't see it as a big enough issue to act on since it won't win many political points for them.

It's one of those things where nobody will go on record supporting it in abstract but both sides will generally turn a blind eye to it being done to people they don't like.

I'm surprised people still fall for a legal dictatorship masquerading as a democracy that has the audacity to not even teach a TL;DR of law in school to everyone and give periodic updates to the public ensuring all have seen and _agreed_ to the legal dictatorship!

What about the taxation dictatorship? The beauty of institutional dictatorships like Law, Finance & Medicine is they dont die unlike people. Your enemies are the people who control these institutions.

At least the human dictator's like Pinochet, Saddam Hussein, Hitler, Stalin, Franco, and others didnt attempt to hide their existence and their cruelty unlike the institutional dictatorships who pass the buck to another entity if they cant lay the blame on your failings whilst not recognising their own failings!

Trump was more intelligent than most realise when he called for a protest outside the Capitol Building. These faceless individuals who control your life in return for monkey tokens are your real enemies because they control so many people's lives and they only allow you to change the diversionary puppets aka politicians every few years.

When people wise up to whats going on, it always ultimately boils down to the most violent win, with that in mind, be mindful we could all be sleepwalking into another world war to make everyone humble to the puppeteers.

didn't it already get ruled unconstitutional?

No. I believe the most recent high-profile case merely established that state civil forfeitures were subject to the 8th Amendment prohibition on excessive fines: https://en.wikipedia.org/wiki/Timbs_v._Indiana

It's unlikely it would ever be declared unconstitutional. More likely (but still not very) courts will eat around the edges, minimizing the ability of law enforcement to use asset forfeitures as a substitute for proper criminal prosecution. (Note that in the Timbs case he was simultaneously criminally prosecuted, and (IIRC) it was undisputed his vehicle was used in the commission of a crime. Depending on how you look at it, this context could bode well or bode poorly for future judicial reform.) Much more likely still is legislatures passing laws to reign in law enforcement use of civil forfeiture. Still a very long way to go, though.

It occurred to me that civil forfeiture in the US may have been an attempt to regulate highway robbery. The US traditionally had giant swaths of lightly populated territory between population centers. Most other regions of the world with similar dynamics have struggled with lawmen or other highwaymen illegally confiscating property in such situations.

Did we simply make highway robbery legal if it’s done with a badge?

I think it’s a bit less nefarious than that & mostly just another way to fuck over minorities & make them submissive to authority.

It isn’t too often you hear about joe average white guy getting held up in a civil forfeiture dispute. Completely innocent aside from not being white on the other hand, it comes to light every now & then.

Without trying to incite a political flame war in these comments - you don’t really hear about the US Republican Party of personal freedoms & ability to shoot & kill anybody who steals from you trying to overturn civil forfeiture.

Right, they don't expect to have it done to them.

You’re very close - it’s started in maritime law. The idea was if the captain of a ship had committed a crime, or incurred a fine, and then skipped town, you could seize the ship.

Timbs v. Indiana is a great case. I've seen too many civil forfeitures where someone lost their brand new $60,000 car because they got some sort of minor traffic infraction.

In theory, Timbs has limited that.

I've not seen it used much in practice yet, but most state and local governments are seriously winding down their civil forfeiture practices anyway due to the changing tide of public opinion from abuse.

(2016)

Civil Forfeiture goes directly against Constitutional rights and protections. This article makes ridiculous excuses for the practice and in my opinion, the article is disregarded without consideration.

Indeed. By common sense, civil forfeiture as it de facto occurs today is a clear violation of fundamental human rights. If an argument can be made that the process is compliant with some document supposedly enumerating fundamental rights of a person - such as the US constitution - either the argument or the document is flawed.

Civil law in general goes against constitutional protections. Most rights one has in a criminal case don't exist in the civil side.

There is nothing civil about civil asset forfeiture. It is straight up robbery, about the most uncivil government action you can imagine short of rounding suspects up and shooting them.

That's lot of reaching around to dilute and negate the 4th, 5th and 14th Amendments.

All of our rights are under attack. “The End of America” by Naomi Wolf [0] provides a compelling outline of how this has unfolded, and the situation has only gotten worse since its publication.

[0] https://en.wikipedia.org/wiki/The_End_of_America:_Letter_of_...

Civil law is being increasingly used to avoid rights. Right to a lawyer, right to proof beyond a reasonable doubt, right to be present at your hearing, etc. We see it with this, we see it with red flag laws, we see it with the abused of restraining orders in divorces.

If they can't get it done in criminal court because rights get in the way, then they just create a civil path for it.

A great example of this circumvention is Texas permitting civil cases to target individuals that get abortions, because their criminal laws got stomped as unconstitutional.

This is on the long list of reasons why the US sometimes seems to be hostile to its own citizens.

Sometimes? The US is and always has been hostile to some of its citizens.

>> and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

This is a hit piece on the constitution. The secure in our possessions language is plain and simple. To pretend those protections are more nuanced is disingenuos.

That’s because forfeiture is a civil claim against assets not a criminal procedure against a defendant. It’s argued that those assets were not the defendant’s to begin with.

Except for all the cases when they obviously are, making the whole process a blatant end run around the fourth amendment.

That would be fine with me if the onus was on the government to prove the assets weren't legally acquired. Now it is up to the person to prove the assets were legally acquired.

I’m just explaining the rationale. At this point it’s a moral discussion rather than legal: does the “war on drugs” et al trump individual rights? If yes, you’d be in favor of forfeiture, if not, you’d be against.

Except it's not really a moral discussion, it's a legal one—and the most fundamental laws of the country obviously ban the tactic.

The article uses a lot of sophistry to try and argue that the plain and obvious intended reading of the Fourth Amendment isn't correct, and that's obviously nonsense, both in a vacuum and in the context of when and why it was written.

Laws codify the underlying morality of a society so they are not divorced and independent one from the other. There may be a significant lag between both, though and at times one may lead the other.

No. With no conviction, there is no legitimate claim of a crime.

Very often the confiscation is not connected to an indictment, or even an arrest. "Oh, you have cash! We'll take that, you're free to go. Scram."

Sometimes the cop just wants your Camaro.

Sure - I was just saying my problems with the current implementation. I'm not even against civil forfeiture as a premise - merely how it is implemented now, where one needs to prove something that may be impossible.

Imagine if you take $25/week out of your paycheck and put it under your mattress. 10 years later you take that money and go to buy a truck, but you're pulled over and the cops take all of your money.

How exactly can you prove the money is legitimately yours? If the burden of proof was put on the accuser(cops), then they would need to show that you're a drug dealer or something, not just some guy who learned financial habits from a member of the old school of savings.

How can you be for civil forfeiture? What is the argument for it?

A thief can always explain why he was perfectly justified in stealing.

Probably won’t cut it.

Unless the thief is a cop, of course.

Its basis is in abandoned property that was likely illegally obtained, where they can't find an owner. Such as a ship in a harbor full of illegally imported goods.

It's been stretched to include having $2k in cash in your car while driving.

According to the article, it looks as if it originates in admiralty "prize" law, which seems to be about buccaneers like Francis Drake; and later extended to the colonies, to allow seizure of ships and their contents trading with a colony without authorisation (e.g. not a British ship, or duty not paid).

In a civil suit, you don't get the assets until you win (and maybe not even then).

Here, the government takes them by force immediately, and you have to fight for them back. Not the same thing.

And you have to fight even for the ability to prove you have "standing" to fight for them back.

No, "in rem" civil forfeiture says that the items are a guilty party in the criminal action. It is no different to putting a person in pretrial detention until their case reaches trial.

>> That’s because forfeiture is a civil claim against assets not a criminal procedure against a defendant.

The constitution makes no distinction between criminal or civil here. It makes a blanket statement that the government won't take your stuff.

I did not read the article and do not care whether civil forfeiture is constitutional. It is in my eyes one of the most disgusting things government does to its constituents and has no place in any civilized country. It is a crime. If constitution allows it then the constitution got to be fixed,

You might not care whether it is constitutional, but the law sure does.

Oh please, the people in power in the system ("the law") don't care because it'll never affect them.

Law can declare that the Earth is flat. Does not mean I have to believe in it.

And they'll confiscate the earth because it transgressed the law by being round.

Interesting; is there a law that dictates that the Earth is an oblate spheroid? A bit like the Indiana Pi Bill?

The fact that the practice exists would seem to argue against that.

We are occupied. All who are complicit can never allow us to become a lawful society.

We like to paint a picture of the Supreme Court as being nine impartial giant intellects of law that hand down rulings after careful unbiased consideration.

This is a myth. The Supreme Court is and always has been political. There are "textualists". That's propaganda. There are many examples of this. Take the infamous Dread Scott [1] decision:

> ... the Court held that the United States Constitution was not meant to include American citizenship for people of African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.

A less well-known example is the Colfax massacre [2]:

L An estimated 62-153 black militia men were killed while surrendering to a mob of former Confederate soldiers and members of the Ku Klux Klan.

In United States v. Cruikshank [3] the Supreme Court[4]:

> ... overturned all three convictions on the basis that the indictments were vague and general and had not specified that the victims were deprived of their constitutional rights on the basis of their race or colour.

This is just as stark in interpretation of the Second Amendment. Even though the Amendment was created to give the states the right to form a militia in the event of a slave rebellion (the Southern States were concerned the Federal government wouldn't come to their aid) this went through massive reinterpretation in the 20th century and was ultimate recognized as an individual right in 2008 [5] despite the words "well-regulated milita".

Civil forfeiture is an abomination. The Supreme Court if indeed it was lofty and apolitical would've struck it down long ago as a clear Fourth Amendment violation but they haven't. The construction of forfeiture as a civil procedure for criminal proceeds is tortuous logic at best, right up there with the Court not striking down Texas's SB8 despite it's novel end-run against standing by excluding government officials (which, if upheld, would allow any cosnitutional protection to be bypassed).

Civil forfeiture is nothing more than the continuing echoes of a country founded on white supremacy and the horrors of chattel slavery. It is state violence and the illegal seizure of the assets of the predominantly poor and further evidence that we've never had and never more desperately needed a reckoning with our racist past and present.

[1]: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

[2]: https://en.wikipedia.org/wiki/Colfax_massacre

[3]: https://en.wikipedia.org/wiki/United_States_v._Cruikshank

[4]: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S...

[5]: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

It used to be that the political Supreme Court justices were confirmed with bipartisan approval. This meant that the court's decisions generally fell within the national consensus and the judges received national respect.

Now, we have a new phenomenon where every justice is confirmed by an approximately 51-49 party line vote. And moreover, because the Senate is highly weighted towards one party (as small rural states get the same vote as big urban states), the politics of the Supreme Court are quickly becoming very different from the politics of the nation.

I suspect the new state of affairs - where 5 or 6 unelected politicians-for-life who aren't respected by most voters create laws that most voters disagree with - is unsustainable.

This is what passes as legal scholarship these days thanks to the Federalist Society.

The article has no reference at all to the Federalist Society. Where do you see a connection?

Thanks to Yale.

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