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Unconstitutional Use of Civil Asset Forfeiture

| July 11, 2017

In Tennessee, police officers may legally take your property based on nothing but a mere suspicion that it might have ties to criminal activity. The seizing agency gets to keep the property regardless of whether criminal charges are ever filed and use the proceeds to subsidize their budgets. Defenders of this practice—benignly termed civil asset forfeiture — will argue that it’s a necessary law enforcement tool that ensures criminal gains are diverted away from criminal enterprise.

However, scant oversight coupled with the lack of due process afforded to property owners has created a system that appears less about legitimate crime-fighting, and more about revenue generation. In fact, this system in Tennessee generates in excess of $14 million in revenue per year.  Law enforcement is allowed to keep the proceeds from all the property they seize, even if the seizure is not proven to be connected to criminal activity. Take for the example the Sevier County woman who found herself guilty of a traffic violation while in possession of the proceeds of her mother’s estate and a bag of anti-acids. Despite having been innocent of any wrongdoing to justify the forfeiture of her property, and even after this fact was conceded by law enforcement, she was still forced to retain counsel and file suit against the State of Tennessee in order to get her property returned.

Ignoring numerous accounts from innocent property owners who have had property taken by law enforcement, as well as repeated calls for reforms, the practice of civil asset forfeiture in Tennessee continues.  However, this will hopefully change thanks to scathing remarks recently released by Supreme Court Justice Clarence Thomas

Last March, procedural defects led the United States Supreme Court to deny a petition for appeal by the plaintiffs in Leonard v. Texas. What distinguished the Court’s denial from the thousands of petitions denied by the Court each term was that it was accompanied by a statement from Justice Clarence Thomas addressing the issue that was to be presented in that case. The issue being “whether the modern day civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.” He began with a brief history of civil forfeiture, the genesis for which was piracy and customs crimes.  In those instances, civil actions against property were undertaken “by necessity” since “the party responsible for the crime was frequently located oversees and thus beyond the personal jurisdiction of the United States courts.”

In addressing this issue presented, Justice Thomas characterized the modern civil asset forfeiture practice as “widespread and highly profitable,” while also highlighting examples of abuse. He went on to criticize the practice as “frequently target[ing] the poor and other groups least able to defend their interests in forfeiture proceedings serves.” Signaling his position that civil forfeiture statutes—like those adopted in Tennessee—are unconstitutional, Justice Thomas opined that the modern practice is not supported by Supreme Court precedent that addressed the historic practice.  He pointed out that an individual ˗ the Sevier County woman ˗ whose property is seized does not benefit from the “procedural protections” associated with criminal charges “including the right to a jury trial and the proper standard of proof.”

Tennessee’s civil asset forfeiture practice is implicated in Justice Thomas’ statement.  Its scope reaches well beyond the drug dealer and their drug proceeds, and captures innocent property owners without affording adequate due process protections. States such as Tennessee that have repeatedly refused to reform their civil asset forfeiture laws are now on notice that these laws are constitutionally suspect. It is worth noting that Justice Thomas concluded his statement by implying that the Supreme Court would welcome a procedurally defective-free presentation of this issue for future consideration. Thus, one may reasonably conclude that if legislators will not assume the responsibility of reforming their state laws to comport with the due process rights of its citizens, then the United States Supreme Court may very well be poised to do so.

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JULIE WARREN is a graduate of Marshall University and of Regent University School of Law. She also attended Georgetown Law Center as a visiting student. While in law school, she clerked on the Senate Judiciary Committee. Julie served four years at the U.S. Department of Justice in Washington, D.C. After a few years in private practice as a civil defense litigator, Julie returned to public service and began her work in the Office of the West Virginia Attorney General where she primarily served as an appellate advocate for the State of West Virginia and as legislative counsel to the Attorney General.

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