Justice Thomas Speaks Out Against Civil Asset Forfeiture

The Supreme Court just decided not to accept an appeal of a case involving the clearly unconstitutional civil asset forfeiture laws, but Justice Clarence Thomas wrote a rare dissent from the denial of cert questioning the constitutionality of the practice.


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.

In a one-line order, the high court declined to hear a case related to the practice. But in an accompanying statement, Thomas broadly questioned whether civil forfeiture could withstand legal scrutiny.

“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.”…

As Thomas explained, abuses do not affect all people equally.

“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.

“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 The Huffington Post. “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.”

This is a very positive development, especially coming from Thomas, who has been little more than a rubber stamp for virtually every abuse of police power since he joined the court. Now they just need to accept a case and rule that way. There is at least one other case working its way up through the courts. It is mind-boggling to me that anyone, regardless of political or judicial ideology, could possibly believe this is constitutional. The 4th Amendment could not be any more clear on the matter.

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