For all the talk of deep partisan divides on the Supreme Court, justices found ground for unity last week on the controversial topic of asset forfeiture. Seven of the eight participating justices rejected a Colorado requirement that people must prove their innocence before they can recover assets seized in criminal cases where the defendants were found not guilty.
Conservative Justice Clarence Thomas was the lone dissenter. Newly sworn Justice Neil Gorsuch did not participate. Otherwise, conservatives and liberals agreed that Colorado’s asset-forfeiture law went way too far in granting government the authority to retain seized assets without due process.
Asset forfeiture is a tricky issue. No one likes the idea of, say, a major drug trafficker getting to keep a mansion, yacht or millions of dollars in probably ill-gotten gains simply because the government couldn’t prove that these were the direct proceeds of a criminal enterprise. But our court system requires a presumption of innocence. The prosecution has the burden of proof, not the defense.
In the Colorado case, two former criminal defendants whose convictions were overturned had to sue the state to recover fees and assets taken during their prosecution. Colorado law required them to prove their innocence in court before assets could be released.
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“Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions,” Justice Ruth Bader Ginsburg wrote for the majority. “To get their money back, defendants should not be saddled with any proof burden.”
Numerous states have laws that impose enormous costs and hassles on former defendants seeking to recover seized assets. Police departments and prosecutors’ offices often rely on those assets to fund their operations. Nationally, asset forfeitures in 2014 exceeded $5 billion.
Officers in one notorious East Texas case for years used their state’s asset-forfeiture laws to systematically shake down mainly black and Latino motorists on local highways for innocuous offenses like driving 37 mph in a 35 mph zone. In Missouri, seized assets must be used to fund schools, which helps remove the incentive for police to use asset forfeiture to boost local coffers. Still, abuses abound.
President Donald Trump stepped into the middle of this debate during a February meeting with law enforcers when a Texas sheriff complained about a Republican state senator who had proposed a bill requiring conviction before authorities could seize a defendant’s money. Trump offered to destroy the senator’s career.
Trump failed to recognize that this is a sore point among many of his party’s conservative hardliners who see asset forfeiture laws as an example of government run amok.
The Conservative Review said Trump’s threat “should scare all of us.” Jacob Sullum, of the libertarian magazine Reason, labeled asset forfeiture “legalized theft.”
It’s a rare day, indeed, when Justice Ginsburg stands with them at the Supreme Court.