Scalia was conflicted about Wickard....
Posted on 03/18/2017 12:55:10 PM PDT by Ken H
Justice Clarence Thomas questions the constitutionality of taking property from motorists with civil procedures.
The idea that the government can take away someone's car or cash without due process offends at least one member of the US Supreme Court. In a statement Monday, Justice Clarence Thomas called on his colleagues to revisit civil asset forfeiture, the process that allows prosecutors to go after assets allegedly linked in some way to a crime. The justice argued the system has been widely abused.
"Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof," Justice Thomas explained. "Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable. And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture."
Justice Thomas cited the example of speed traps in Tenaha, Texas where officers would stop out-of-town black and Latino drivers and coerce them into signing over their car or cash to avoid the filing of felony charges. Tenaha raised $3 million from people passing through the town over two years.
"These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings," Justice Thomas wrote. "Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards,which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home."
The Supreme Court allows civil forfeiture citing laws that stretch back to the first Congress giving customs officials the authority to seize pirate ships and contraband cargo under the fiction that the property itself was guilty of a crime, not its owner.
"I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice," Justice Thomas wrote. "First, historical forfeiture laws were narrower in most respects than modern ones."
The pirate ship's owner could not be hauled into court because he was usually found overseas, for example. The laws also went after the ship, but not the property a pirate may have purchased with the booty -- as modern laws allow. The old laws also maintained more due process protections.
Justice Thomas made his observations in the case of Lisa Olivia Leonard who was stopped in the notorious speed trap town of Cleveland, Texas on April 1, 2013 for allegedly driving 71 MPH in a 65 zone. The officers on the scene took $201,100 in cash she had in a safe, alongside a bill of sale for a house. For procedural reasons, the high court turned down Leonard's appeal, but Justice Thomas is looking forward to the opportunity of revisiting the forfeiture issue.
"Whether this court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail," Justice Thomas concluded.
Justice Thomas has a long record of upholding the rights of motorists. In 2000, he questioned the constitutionality of drunk driving roadblocks.
"I rather doubt that the framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing," Justice Thomas wrote in Indianapolis v. Edmond.
They proclaim loudly that they respect the Constitution. Then they pass laws like this, being sure to give it a nice-sounding name, like Civil Asset Forfeiture.
There is no forfeiture in this at all. It’s seizure. This is theft and a violation of the Constitution.
IMO Clarence Thomas is one of the best Justices we’ve ever had - in some ways better than Scalia in faithfulness to the Constitution as written and originally understood and intended. We need four or five more just like him in the Suprme Court to steer our country back to being a Free Constitutional Republic where the Supreme Court does NOT unconstitutionally make national law and where their decisions ARE constitutionally based.
When Justice Thomas speaks one does well to listen!
“When Justice Thomas speaks one does well to listen!”
Remember what they did to him? This stuff with Trump is not new. The only new thing is fighting back.
“in some ways better than Scalia in faithfulness to the Constitution”
When Scalia put the “substantive effect” commerce test on steroids to fight the War on Pot, Thomas rightly called it a “rootless and malleable standard.”
Good Lord! I pray you reverse this! Amen.
No forfeiture without a conviction. But how do you prevent the real criminals from disposing of all their assets, leaving nothing to seize after conviction?
Rand Paul introduces the most sweeping reform of civil asset forfeiture law in decades
First you worry about following procedure and doing the right thing. The “real criminals” won’t have much left after the lawyers get through with them, anyway.
I’m surprised the Supreme Court hasn’t already struck this down. It seems like one of those issues where the conservatives, like Thomas, and ACLU Ginsburg would agree.
Beyond belief! Some bubba cops hit the gambling boat and whorehouse that night, you can be sure.
“But how do you prevent the real criminals from disposing of all their assets”
Freeze them - you don’t need civil forfeiture to do that.
God Bless Justice Thomas. He and Alito are the only sane ones left.
Scalia was conflicted about Wickard....
Damned straight.
It’s piracy under the rubric of givernment and it’s convoluted moral imperative and a conceit of imprimatur to enforce their deceit...
Wonder where Gorsuch falls ...
I have access neither to the data nor to the AlGoreRhythm, so am at a loss but would like to know.
Hear hear. It’s theft, it’s guilty until proven innocent, it’s rejection of due process, it’s usually unreasonable search and seizure both, it’s deprivation of rights under color of law, and it’s straight up corruption.
Interesting graphs. (Don’t know who Merrick B. Garlan is but it would interesting to see Judge Robert Bork’s anticipated place on the graph if he hadn’t been “borked” by Ted Kennedy’s demagoguery and lies. IMO, Bork was capable of having been one of the greatest justices on the Supreme Court.)
Although I usually agreed with Scalia’s decisions, I found myself disagreeing with his reasoning many times as often it seemed he would use something other than the Constitution as the basis for his decisions.
Thomas’ record shows reasoning more often based on the Constitution as originally understood and intended.
IMO, Scalia’s weakness was his rigid adherence to “textualism”. I agreed with his philosophy to the extent that the words and text of the Constitution should always be the starting place. But if there is ambiguity or a good-faith disagreement about the meaning of the word(s) in the context of a given clause, then original understanding of the use of the word(s) should come into play. And after that inquiry, if there is still good-faith reason(s) that the word(s) themselves in the context could be interpreted more than one way, then further inquiry into original intent should come into play.
Scalia rejected those further inquiries out of hand leading to what I believe were often flawed rationale and sometimes flawed decisions as in Gonzales v. Raich. The Commerce Clause (CC) is a good example of the need for good-faith inquiry of original intent which almost certainly was limited to removing hindrances to interstate commerce - nowhere near the sweeping powers the feds have assumed through misinterpretation, misuse, and misapplication of the CC.
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