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A very conservative Supreme Court justice seems ready to stop police from taking your stuff

Clarence Thomas backed all the big arguments against civil asset forfeiture.

Justice Clarence Thomas speaks at Antonin Scalia’s memorial service. Susan Walsh/Pool via Getty Images

Right now, the police can legally take your stuff even if you haven’t committed a crime — through what’s widely known as “civil asset forfeiture.”

On Monday, the conservative Justice Clarence Thomas made it clear he is very skeptical that this practice is constitutional. While he ultimately denied a petition that would bring a case about civil forfeiture to the Court, he did so on a technicality — adding that modern civil forfeiture practices are very questionable.

Through civil forfeiture, police officers can seize someone’s property without proving the person was guilty of a crime; they just need probable cause to believe the assets are being used as part of criminal activity, typically drug trafficking. Police can then absorb the value of this property — be it cash, cars, guns, or something else — as profit, either through state programs or under a federal program known as equitable sharing, which lets local and state police get up to 80 percent of the value of what they seize as money for their departments.

Since police can do this before someone is actually convicted of a crime, activists have argued this is a violation of someone’s due process rights. After all, cops are essentially punishing someone — by taking his or her stuff — before the justice system has even tried and convicted that person for a crime.

Thomas, in his nonbinding analysis, seemed to agree. He wrote that civil asset forfeiture does seem like a punishment that circumvents due process, and he’s skeptical of how it is currently used, noting that it’s widely abused. And that could have big implications for a practice that has drawn a lot of criticism from criminal justice reformers in recent years.

Police took $201,100 without proving a crime in criminal court

Thomas denied the petition for the civil forfeiture case on a technicality: He said that the defendant, Lisa Olivia Leonard, didn’t properly bring one of her legal arguments to the Texas Court of Appeals, denying that court an opportunity to rule on the full facts of her case. “I therefore concur in the denial of certiorari,” Thomas wrote.

But he wrote, “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.”

In 2013, James Leonard was stopped for a traffic violation on what police say is a well-known drug corridor in Texas. During the stop, police found a safe in the trunk of the car. After obtaining a search warrant, the cops found in the safe $201,100 and a bill of sale for a Pennsylvania home, which reportedly belonged to Lisa Olivia Leonard, James’s mother. Police took the money, claiming — without proving it in criminal court — that it was related to a drug sale. And now Lisa Olivia Leonard is suing, arguing that police violated her due process rights.

One of the most conservative justices is skeptical of civil forfeiture

In his brief analysis, Thomas essentially embraced all the major arguments against civil asset forfeiture. He acknowledged that it’s become “widespread and highly profitable,” and therefore leads to “egregious and well-chronicled abuses.” He noted that it tends to target poor people and other marginalized groups, who “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.”

Then he argued, “I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.”

Typically, civil forfeiture cases involve the government filing a lawsuit against a piece of property, which can lead to absurdly named cases like United States of America v. $11,000.00 in United States Currency. Basically, if the government sues the property, it essentially avoids the constitutional rights attached to people. That, the government argues, lets it seize property that it believes is linked to criminal uses more quickly — to cripple the financial abilities of would-be criminals and therefore prevent future criminal activity.

Thomas argues this used to be done out of necessity, but that’s no longer the case.

“First, historical forfeiture laws were narrower in most respects than modern ones,” he wrote. “Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts.”

He also noted that civil forfeiture used to target property explicitly used to carry out a crime, not cash or property that may be in some way loosely connected to the crime — another example of how civil forfeiture’s use has been greatly expanded over the centuries: “These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods).”

The correct avenue for these cases, Thomas added, may involve a criminal conviction.

By targeting the property for lawsuits, the rights that the government avoids having to worry about in civil forfeiture cases are typical due process protections such as the right to a trial by jury and setting the standard for proof at beyond a reasonable doubt — since those rights are for people, not property. This leads to situations in which property is taken from people before they’re convicted for a crime, punishing them even as they’re still not assumed to be guilty in the eyes of the law.

Thomas said he’s skeptical this is constitutional. Citing past legal precedent, he said that for the Leonard v. Texas case in front of him, “there is some evidence that the government was historically required to prove its case beyond a reasonable doubt.” Essentially, that means this should be a criminal forfeiture case — one that requires a criminal conviction — instead of a civil forfeiture case. And since this case is a run-of-the-mill civil forfeiture case, that casts doubt on whether civil forfeiture, as it’s currently used, is really okay.

Thomas is one of the most conservative members of the Supreme Court, although he has voiced skepticism of civil asset forfeiture — which is typically championed by cops and their conservative allies — in the past. And this time around, he is seemingly ready to finally do away with the practice altogether, putting him at the forefront of one of the biggest criminal justice issues of the day.

Civil forfeiture is very frequently abused

Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments. People can get their property back through court challenges, but these cases can often be very expensive and take months or years.

Michael Sallah, Robert O’Harrow, and Steven Rich uncovered several instances for the Washington Post in which people were pulled over while driving with cash and had their money taken despite little to no proof of a crime. The suspects in these cases were only able to get their property back after lengthy, costly court battles in which they showed they weren’t guilty of anything.

I’ve also covered the story of college student Charles Clarke, who was at the airport when police took his life savings of $11,000. Police said they smelled marijuana on Clarke’s bags — but they never proved the money was linked to crime, and Clarke provided documents that showed at least some of the money came from past jobs and government benefits. The case led to a lengthy court battle before the government finally backed off.

Stories like Clarke’s have driven some states to enact reforms. For example, in New Mexico and North Carolina, a court must convict the suspect of a crime before the same judge or jury can consider whether seized property can be absorbed by the state. In Minnesota and Montana, meanwhile, a suspect must be convicted of a crime in court before the seized property can be absorbed by the state through separate litigation in civil court. And in California, the state requires a conviction for forfeiture — but only for financial seizures worth up to $40,000; a boat, airplane, or vehicle; and any real estate.

These limitations don’t entirely stop police from seizing someone’s property. Cops can still do that with probable cause alone, and hold the property as evidence for trial.

But the government won’t be able to absorb the property and its proceeds without convicting the suspect of a crime. This limits police seizures in two ways: It forces cops to show the suspect was actually involved in a crime after the property is seized, and it can deter future unfounded seizures for profit, since police know they’ll need to prove a crime.

Still, the federal government and most states continue to allow civil forfeiture. The federal law in particular creates a big loophole, even in states that limit local and state police’s forfeiture practices: If local and state cops work through the federal program, they can still conduct forfeitures, and their police departments can keep as much as 80 percent of the proceeds — regardless of what state law says. Only a few states restrict local and state police from working with the federal government on forfeiture cases.

The result: In much of the country, police can legally take your property even if you never committed a crime.

"It’s ridiculous. I think it needs to change," Clarke told me in 2015. "I don’t think the cops should be allowed to take somebody’s money if they haven’t committed any crime. We’re treating innocent people like criminals."

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