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The Supreme Court appears to be on a roll where asset forfeiture is concerned. SCOTUS isn’t making any sweeping overhauls, but the trend is clearly toward reform.


Back in April, the court ruled 7-1 that Colorado can’t keep fines, court costs, and other money taken from defendants if their convictions are overturned. “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions,” Justice Ruth Bader Ginsburg argued in the majority opinion — and she was right.

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This week, SCOTUS issued an 8-0 ruling (newly arrived Justice Neil Gorsuch abstained) in Honeycutt v. United States, again overwhelmingly coming down against forfeiture abuse.

At issue was whether the government can force you to cough up profits from criminal activity if you never got the money in the first place. WRAL reports:

Justice Sonia Sotomayor said in her opinion for the high court that forfeiture laws are “limited to property the defendant himself actually acquired as the result of the crime.”

She cited as an example a case in which a marijuana farmer masterminds a scheme to sell pot on college campuses and recruits a college student to deliver the packages for $300 a month. In her example, the farmer might earn $3 million in a year, while the student earns $3,600. She said under the government’s theory, the student could face a forfeiture judgment for the entire conspiracy amount of $3 million.

“Congress did not authorize the government to confiscate substitute property from other defendants or coconspirators,” Sotomayor said. “It authorized the government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation.”

Leaving aside the question of whether our government should still be prosecuting the drug war at all (spoiler: it shouldn’t), this is the right decision. It’s not a big victory, but it is a win for basic common sense.

Now, both of these cases pertain to criminal asset forfeiture, which is when the government confiscates money or stuff it believes you acquired through criminal activity for which you have been convicted. Sometimes this makes sense: For example, if I’m convicted of stealing a TV, I shouldn’t get to keep the TV. It should be taken from me and returned to the original owners. Other times, as in these cases, that authority can be abused.

More egregious, though, is civil asset forfeiture, which is when the government confiscates money or stuff without convicting you of any crime (and keeps the money for itself — hello, policing for profit).

Reform needs for criminal and civil asset forfeiture aren’t identical, but they are related, so progress here could help speed progress on the civil front. The Institute for Justice (IJ), a libertarian law firm, explained this connection after the April ruling.

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“Today’s decision upholds the fundamental principle that Americans are entitled to be presumed innocent until proven otherwise,” said Robert Everett Johnson, an IJ attorney. “Using civil forfeiture, law enforcement seizes billions of dollars in cash and other property every year based only on suspicion of a crime. Property owners are then required to prove their own innocence to get that property back,” Johnson added. “The continued existence of civil forfeiture cannot be squared with the principles upheld in today’s decision.”

They can’t be squared with the principles of this new ruling, either: If the government can’t keep money you never earned from a crime it proved you did do, how can it take your money when it hasn’t charged you with any crime at all?

Hopefully SCOTUS answers that question soon.

The Supreme Court just struck another blow against asset forfeiture abuse AP Photo/J. Scott Applewhite
Bonnie Kristian is a columnist at Rare, weekend editor at The Week, and a fellow at Defense Priorities. You can find more of her work at www.bonniekristian.com or follow her on Twitter @bonniekristian
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