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Supreme Court Justice Clarence Thomas, sent a strong signal on Monday about his feelings toward civil asset forfeiture, a controversial law enforcement tool that allows police to seize cash and property from people who haven’t been convicted of a crime ― and in many cases, haven’t even been charged, reports the Huffington Post (HuffPo).
After the highest court in the land used a one-line order to deny hearing a case over civil asset forfeiture, Thomas issued an accompanying statement in which he said, “This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,” wrote Thomas. “I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice.”
Thomas outlined his concerns, noting that legal precedent ― most recently in the Supreme Court’s 1996 Bennis v. Michigan decision ― has been based largely on “early statutes” involving property related primarily to piracy and customs, explains HuffPo.
Over the last couple decades, alongside the “War on Drugs,” the issues with civil asset forfeiture have taken centerstage, as law enforcement authorities have reaped billions of dollars in cash and goods for their departments, often times only on the suspicion of criminal activity. And since the confiscation of property happens during the civil proceedings, not criminal, property owners aren’t granted rights to due process or to an attorney. Therefore, police in civil forfeiture cases are often only required to establish weak evidence showing seized property is connected to a crime, not guilt. All of which is a far cry from the days when the procedure was used primarily to seize pirate ships and cargo, explained HuffPo.
The statement from Justice Thomas is not the only current criticism the practice has received, in fact pressure to change the laws regarding the practice have increased dramatically in recent year. HuffPo reported that the Institute for Justice, whose study Thomas cited in his statement, has outlined the enormous financial incentives for police to seize property saying that weak state laws and poor oversight have given rise to a system of “policing for profit,” which leads law enforcement to prioritize activities that bring in money over those advancing public safety.
Justice Thomas has also explained that abuses do not affect all people equally, according to HuffPo.
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” 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.”
Thomas’ comments may suggest that the court would be receptive to a future legal challenge, says HuffPo.
“This is a significant opinion by one of the justices of the Supreme Court questioning the constitutional validity of civil forfeiture,” Darpana Sheth, senior attorney with the Institute for Justice, told HuffPo. “He’s strongly signaling his skepticism and his belief that civil forfeiture is unconstitutional, and he pretty much outlines the blueprint for why the earlier court decisions can’t be squared.”
“I think we can definitely count Justice Thomas in a solid vote questioning the constitutionality of civil forfeiture,” Sheth said.