[Welcome to The Weekly Bipartisan, where we share instances of meaningful bipartisanship, on the Hill and elsewhere. This project seeks to shine a light on efforts to come together to find common ground and advance shared values in a political climate defined by polarization, an increasingly jaded citizenry, and vilification instead of constructive dialogue and debate. –LDB Editors]
“Let these truths be indelibly impressed on our minds — that we cannot be happy, without being free — that we cannot be free, without being secure in our property — that we cannot be secure in our property, if, without our consent, others may, as by right, take it away . . . .”
— John Dickinson, Letters from a Farmer in Pennsylvania, Letter XII, ¶ 6 (1768), available at Online Library of Liberty.
There has been a growing chorus from the left, right, and center, calling for reform to – or even abolition of – the practice of civil asset forfeiture, which allows law enforcement to seize and retain an individual’s property without ever having to charge the owner with committing a crime. According to a 2016 survey, 84% of Americans oppose the practice.
Recently, there has been a spate of editorials from outlets all along the political spectrum decrying abuse of the practice.
A cause with such wide, bipartisan support is ripe for action. In the wake of Justice Thomas’s statement concerning denial of certiorari in a case this term that challenged civil asset forfeiture practices on due process grounds, a bipartisan group of Senators just this past week called on the Department of Justice to reform its civil asset forfeiture practices. Although pushback from the law enforcement community is expected, this will hopefully continue to move the ball at both the federal and state level to reform or end this practice, which is both prone to serious abuse and of questionable constitutional validity.
Before getting to what this coalition of Senators has asked the Department of Justice to do, let’s review how we got to where we are today. “We begin, as always, with the text.” Esquivel-Quintana v. Sessions, No. 16-54, 2017 WL 2322840, at *5 (May 30, 2017).
I. Property and Due Process of Law
The Due Process Clauses of both the Fifth and Fourteenth Amendments protect individuals from being “deprived of life, liberty, or property, without due process of law.” These constitutional guarantees “call for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). As the Court has articulated, what these protections must be calls for “a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961). “
When it comes to property rights, the “private interest” is paramount. As the Court has repeatedly recognized, “property is a natural, fundamental right.” Kelo v. City of New London, 545 U.S. 469, 510 (2005) (Thomas, J. dissenting). See, e.g., Powell v. Pennsylvania, 127 U.S. 678, 685 (1888). As such, due process requires the highest amount of protection before an individual can be deprived of their property. The general rule is that an individual must receive “predeprivation notice and hearing” before that person’s property can be seized. United States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993). This “predeprivation rule” is an essential feature of the due process guarantee, for “no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred.” Fuentes v. Shevin, 407 U.S. 67, 82 (1972). As such, even a “temporary, nonfinal deprivation of property” constitutes a “deprivation” under the Due Process Clauses. Id. at 85.
II. Civil Asset Forfeiture — Use and Abuse
The practice of civil asset forfeiture, however, as conducted in jurisdictions all over the country, frequently violates this basic principle. As the ACLU describes it,
Civil forfeiture allows police to seize – and then keep or sell – any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
The Institute for Justice (IJ) has been waging a war against civil asset forfeiture abuse for a long time.
IJ has compiled an exhaustive report on abuse of this practice, which can be found here.
The Supreme Court has spoken to the issue as well. In James Daniel Good Real Property, the Court stated unequivocally that due process requires that “individuals must receive notice and an opportunity to be heard before the Government deprives them of property.” 510 U.S. at 48. In that case, the government argued that “drug forfeiture laws justife[d] an exception to the usual due process requirement of preseizure notice and hearing.” Id. at 49. Their rationale, in essence, was that exigencies arising from the furtive and fleeting nature of criminal activity gave the government an interest in seizing the property that outweighed the owner’s interest in possessing it, so long as the government had some basis to suspect the property was being used in furtherance of a crime.
The Court rejected this argument, concluding that only in “extraordinary situations” could the “general rule requiring predeprivation notice and hearing” be dispensed with. Id. at 53. Though James Daniel Good involved real property, the Court has elsewhere concluded that the same standard applied to personal property. See Fuentes, 407 U.S. at 84, 88 (holding that seizure of stove, stereo, table, and bed without predeprivation notice and hearing violated due process). The Court reasoned that “if the root principle of procedural due process is to be applied with objectivity, it cannot rest on . . . distinctions” about the nature of the property in question. Id. at 90.
Despite these admonitions, use and abuse of civil asset forfeiture has increased dramatically in recent decades. The ACLU, IJ, and others have continued to fight these practices in the courts and the legislatures. Unfortunately, headway has been hard to come by (though these efforts have recently borne some fruit).
Two recent reports from the Inspectors General of the Department of Justice and the Department of the Treasury raise serious questions about how civil asset forfeiture is being utilized by federal law enforcement agents. And, as the map above indicates, things are just as bad, if not worse, at the state level.
III. Justice Thomas’s Statement Respecting the Denial of Certiorari in Leonard v. Texas
As this practice has become more prevalent, appeals have been filed with the Court challenging forfeiture in various ways. One such case, presenting the question “whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history,” was recently denied this term. See Leonard v. Texas, 137 S. Ct. 847, 847 (2017) (mem.). Normally, when certiorari is denied, no opinion or statement is issued – the case simply goes away, with the last formal ruling becoming binding on the parties involved. In this case, however, Justice Thomas issued a statement “respecting the denial of certiorari.” Id.
The case involved seizure of $201,100 from a safe in the trunk of James Leonard’s car, which police officers seized despite the fact that there was also a bill of sale for a Pennsylvania home in the safe as well. Id. Though logic might suggest that the cash came from the sale of the home – which is what the Leonards said – the state initiated civil forfeiture proceedings and seized the cash in light of the fact Leonard was traveling “along a known drug corridor.” Id. Because of this, the State contended – and the trial court agreed – that there was a preponderance of the evidence to find that the money was “substantially connected to criminal activity,” thereby permitting forfeiture pursuant to Tex. Code Crim. Proc. Art. 59.01. Id.
Citing IJ’s Policing for Profit report referenced supra, Justice Thomas noted that “civil forfeiture has in recent decades become widespread and highly profitable.” Id. at 848. He also recognized that, given “the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.” Id. And, worst of all perhaps, he noted that “[t]hese forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.” Id.
Justice Thomas recognized that forfeiture has been permitted in this country since the time of the Framing. Id. at 848-49. However, as Justice Thomas suggested, absent this historical nexus, “the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.” Id. at 849.
Even with this longstanding tradition of acquiescence to the practice of civil forfeiture in place, Justice Thomas viewed modern practice as beyond the ambit of this historical exception for two reasons: 1) “historical forfeiture laws were narrower in most respects than modern ones”; and 2) historical practice does not establish clearly that forfeiture was actually allowed to proceed civilly rather than criminally. Id. Citing a Supreme Court decision from the 1830s, Justice Thomas contended that “there is some evidence that the government was historically required to prove its case [in a forfeiture proceeding] beyond a reasonable doubt.” Id. (citing United States v. Brig Burdett, 34 U.S. (9 Pet.) 682, 690 (1835)). Due to a procedural defect with this specific case however, the Leonards due process challenge to the Texas statute allowing their property to be seized in a civil proceeding could not be heard by the Court. Leonard, 137 S. Ct. at 850.
Tellingly, this case was not even among the most egregious forms of civil asset forfeiture. Often, property is seized and kept by law enforcement entities without any judicial oversight whatsoever. According to the DOJ Inspector General’s Report, approximately “81 percent of all DEA cash seizures have been forfeited administratively at a value of over $3.2 billion.” This has happened because “DEA and [DOJ] law enforcement officers have the authority to seize and administratively forfeit cash without independent judicial oversight and without charging the owner or possessor of the cash or property with a crime.”
And even where procedures are provided for an individual to attempt reclamation of their seized property, actually doing so can be very difficult for many individuals, who generally are not equipped to advocate for themselves in any form of legal proceeding and who likely cannot invest the time or money to prepare their case and attend the hearing (or hire an attorney to do so for them). This is especially true in those situations where the seizure of property prevents the owner from being able to hire an attorney to advocate for or defend them – a practice permitted by the Court in a related context. See Kaley v. United States, 134 S. Ct. 1090 (2014).
IV. Bipartisan Efforts at Reform
Justice Thomas’s statement in Leonard thankfully did not fall on deaf ears. Senators Mike Lee (R-UT), Tom Udall (D-NM), Rand Paul (R-KY), Martin Heinrich (D-NM), Mike Crapo (R-ID), and Angus King (I-VT) have seized upon Justice Thomas’s statement to write a letter this past week to Attorney General Sessions calling on him to reform this practice.
In the letter, this bipartisan group of Senators expresses the same concerns Justice Thomas did in Leonard, particularly, that the government can seize and retain an individual’s property without predeprivation process, and that the government need not prove that the property was actually used in connection with the commission of a crime. Additionally, these Senators highlight their concerns about the practice of equitable sharing, by which
the Department of Justice distributes an equitable share of forfeited property and proceeds to participating state and local law enforcement agencies that directly participate in an investigation or prosecution that result in a federal forfeiture.
Equitable sharing allows state law enforcement entities to bypass state laws that might restrict forfeiture practices by cooperating with federal law enforcement entities and reaping the proceeds from forfeitures accordingly.
These Senators advise the Department of Justice to “not wait for Supreme Court censure before reforming these practices,” and they call upon the nation’s chief law enforcement agency “to revise its civil asset forfeiture practices to reflect our nation’s commitment to the rule of law and due process.”
Of course, Congress can force the Department’s hand at any time. 18 U.S.C. § 983 is just one of hundreds of federal laws currently prescribing the process required in federal civil forfeiture proceedings. If main Justice is non-responsive, then hopefully these Senators will persist in their efforts and fight to push through the Fifth Amendment Integrity Restoration Act of 2017, which they all have co-sponsored and which is currently pending before the Senate Judiciary Committee.
As Timothy Sandefur has articulated so cogently,
Private property holds together a free society. It enables free societies to create wealth, it enables minorities to defend themselves against prejudiced majorities, and it allows people to realize their values in physical form: to live the way they believe, to express themselves, and to enjoy the fruits of their labors. It is truly the cornerstone of liberty.
It is no wonder that the Framers included property rights alongside life and liberty in the text of the Constitution, all of which are safeguarded by the Due Process Clauses’ fundamental requirement that no person can be deprived of these things without due process of law.
If the due process clauses mean anything, it is that the government cannot kill you, jail you, or take your stuff without you first having an adequate opportunity to challenge the government’s decision to do so. With respect to civil asset forfeiture, however, the government has found that it can take your property first and provide you with very limited recourse to get it back later. This turns the Constitution on its head. And a bipartisan group of Senators wants to do something about this. If the Department of Justice does not respond to their calls for reform, we hope that this group will continue in their efforts and lead the way in Congress to rein in this abused practice of dubious constitutionality.