Three Supreme Court justices have gone public about the fundamental unfairness of civil forfeiture

Yesterday, I was able to get out of the office to watch the oral argument in Culley v. Marshall before the Supreme Court of the United States. The perspective of the petitioners (the people who brought the case to the Supreme Court) is summed up well by the very first paragraph of the very first document they filed with the Court asking it to hear their case:

Petitioners did nothing wrong. They let others drive their cars, and when those individuals got arrested, Respondents’ officers seized, retained, and tried to forfeit the cars, rebuffing Petitioners’ claims of innocence. But Alabama had no chance of forfeiture, because Alabama law bars forfeiture of an innocent owner’s car. Even so, Respondents deprived Petitioners of their cars during the forfeiture proceedings, each lasting well over a year. For Sutton, the consequences were severe: she couldn’t find work, fell behind on her bills, and missed medical appointments … None of this had to happen: Alabama could have provided, as it does now, a streamlined retention hearing, a limited proceeding testing the “probable validity of continued deprivation” during the forfeiture proceedings.

Here is the question that the petitioners are asking the Court to decide: What kind of procedural rights are people entitled to once the government seizes their property? Are victims of forfeiture entitled to an immediate hearing, or something like it, to ensure that their property interests are protected? Or are people’s constitutional rights to use and possess their own property sufficiently protected if we allow the government to keep custody of seized property for a significantly longer period?

Two things became clear to me as I watched the nine justices deliberate among themselves and grill the advocates who came before them. First, this is a really hard constitutional question. The Supreme Court is generally wary of imposing new standards or new rules on fifty or so different jurisdictions, even if those new standards and rules appear to be driven by the best of intentions. What the “right” rule is (“right” in almost any sense) is hard to discern, and the Court is almost painfully self-aware of the problem.

Second, the pervasive unfairness of our system of civil forfeiture appears to be very much on the minds of many members of the Court. Indeed, this was a major theme in the remarks that several of the justices made from the bench during oral argument. Their words suggest that they are haunted by the extensive injustice of that system, even if they are not entirely sure what to do about it.

From Justice Neil Gorsuch:

There are arguments to be made that there are attempts to create processes that are deeply unfair and obviously so in order to retain the property for the coffers of the state…

I mean, there are allegations before us that in some states, because law enforcement uses these — these forfeitures to fund themselves, that they sometimes require somebody who wants some of their property back to agree to give some of it to the government or engage in other concessions outside of regular process.

From Justice Sonia Sotomayor:

We know there are abuses of the forfeiture system. We know it because it’s been documented throughout the country repeatedly of the incentives that police are given to seize property to keep its value as opposed to issues of probable cause or issues of legitimacy of the seizure, okay? We also know that that incentive has often led to months, if not years, of retention of property that ultimately gets returned to the owner because there was either no probable cause or because of the innocent owner defense.

So the question before us is, if we make a determination to take the dicta in Von Neumann and in the [$8,850] case, all right, to say that’s the entire process you’re ever due, do we leave open the possibility that there are states, jurisdictions that are abusing this process and not leaving us any arms to correct it? That’s what we’re doing, isn’t it? If we say there’s no overriding first question, is this process, the features of this process, are they enough, whether it’s under Mathews or Barker, then what we’re basically saying is go at it, states, take as much property as you want, keep it as long as you want, let’s hold out no hope whatsoever that there’s ever going to be any further process that’s due? That’s the bottom line, right?

Sotomayor then challenged the advocate for the government who argued that civil forfeiture was an appropriate method for crime control and that existing protections were adequate to protect the innocent:

I’m sorry. Why? First of all, I doubt very much that criminal defendants from whom cars have been taken are going to seek a retention hearing because whatever they say will be used against them in the criminal case. I don’t think New York’s experience reflects the use of these retention hearing by criminals or by people from whom the goods have been taken that are tied to criminal activity. These cases are most important for one group of people, innocent owners, because they are people who claim they didn’t know about the criminal activity. Many of these cases involve parents with young — with teenage or close-to-teenage children involved in drug activity. The ones that don’t may involve spouses or friends. And I assume, in many of these hearings, to the extent that a person is involved in drug dealing, that the government pretty quickly will find out or not find out if that person has a relationship to a home or other place where drugs are being stored, distributed, et cetera, and the government can do what your opposing counsel said, ex parte hearing saying this is a wife who claims she’s an innocent owner, but we have evidence that there’s drug dealing going on from the home, it’s unlikely she’s an innocent owner. If it’s someone who’s unrelated and no continuing relationship, et cetera. So you’re talking about criminals get — keeping these cars. But, given that the vast majority — I — I believe the statistic was very high — certainly, over 60 percent of innocent owners win, it is not criminals keeping cars. It’s innocent owners receiving back their cars months, if not years, later. So where does the Barker factors take those interests into account? They don’t.

From Justice Elena Kagan:

I think Justice Sotomayor raises a very important point, which is that we know a lot more now than we did when $8,850 and the other case were decided about how civil forfeiture is being used in some states, about the kinds of abuses that it’s subject to, about the kind of incentives operating on law enforcement officers that — that tend toward those abuses. So — so, if we look around the world and we think there are real problems here and those problems would be solved if you got a really quick probable cause determination, why shouldn’t we do that?

I’m generally opposed to editorializing from the bench. But yesterday I witnessed a welcome sign of health in our political system. The everyday injustices of civil forfeiture have become indisputably clear to at least three members of the Supreme Court.