November 28, 2018


Neil Gorsuch and Sonia Sotomayor Just Came Out Swinging Against Policing for Profit (MARK JOSEPH STERN, NOV 28, 2018. Slate)

Although Gorsuch led the charge, no justice seemed to think that the Constitution permits states to impose excessive fines. So Fisher raised a backup argument, alleging that the Eighth Amendment doesn't bar forfeitures of property, only money. The problem with this claim is that the court rejected it in 1993's Austin v. United States. So Fisher asked the court to overrule Austin, further flummoxing Gorsuch.

"Let's say this court's not inclined to revisit Austin," he told Thomas. "You're going to lose not just the incorporation question but the merits question too." Justice Stephen Breyer asked if Indiana could seize a Bugatti if it was going 5 miles per hour over the speed limit. "Yes, it's forfeitable," Fisher responded. Breyer mused: What about a "Mercedes, or a special Ferrari or even jalopy?" Fisher laughed at Breyer's fanciful hypotheticals. But Justice Sonia Sotomayor, Gorsuch's new criminal justice ally, looked unamused.

"Justice Scalia said it very well," she told Fisher, quoting Scalia's opinion in Austin. "For the Eighth Amendment to limit cash fines while permitting limitless [property confiscation] would make little sense." Instead, it would revive England's notoriously lawless Star Chamber. Gorsuch nodded vigorously in agreement. "Are we trying to avoid a society that's like the Star Chamber?" Sotomayor asked. "If we look at these forfeitures that are occurring today ... many of them seem grossly disproportionate to the crimes being charged."

She's right. In Philadelphia, prosecutors seized one couple's house because their son was arrested with $40 worth of drugs. Officials there seized 1,000 other houses and 3,300 vehicles before a 2018 settlement that led to reparations for victims. In 2014, federal prosecutors used asset forfeiture to take more stuff than burglars. One Texas police department seized property from out-of-town drivers, then colluded with the district attorney to coerce these drivers into waiving their rights. Law enforcement frequently targets poor people and racial minorities, figuring they are unable to fight back.

Although he said nothing on Wednesday (as usual), Justice Clarence Thomas is one of the court's fiercest critics of civil asset forfeiture. In 2017, he wrote a solo opinion urging the court to rein in the practice. Citing its "egregious and well-chronicled abuses," Thomas asserted that the Constitution likely does not allow police to "seize property with limited judicial oversight and retain it for their own use." And in 1998, he authored a 5-4 decision, joined only by the liberals, outlawing forfeitures that are "grossly disproportional to the gravity of [the] offense."

So while Gorsuch and Sotomayor led the fight on Wednesday, there's probably a cross-ideological coalition of justices prepared to invalidate excessive forfeitures.

Posted by at November 28, 2018 5:55 PM