The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):
With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.
This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture…
Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern….
We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.
The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.
raoul says:
First time I agree with this poster (and in the strongest sense-by and large criminal procedure is a joke in this country- and sadly dems abet the situation). Thoughts on Gov. Perry latest shenigans in Texas?
October 25, 2009, 11:39 pmCornellian says:
I wish the WSJ’s concern for due process in criminal prosecutions would extend beyond cases in which loss of property is involved.
October 26, 2009, 12:00 amuh_clem says:
First time I agree with this poster
It’s not the first time I agree with Ilya, but it may be the first time I agree with him and the WSJ editorial page.
Unfortunately, the court may well punt on this one and dismiss it on procedural grounds.
October 26, 2009, 9:50 amKent Scheidegger says:
I’m kind of surprised that the Respondent only mentions the Fourth Amendment rule of Gerstein/Riverside in passing. I would have made it a major point, possibly the primary argument.
October 26, 2009, 3:09 pmBryan Willman says:
Why do we EVER allow ANYTHING seized or taken by fine to be added to the budget of the seizing/fining agency? It will ALWAYS be inducement to “robbery” by the police and courts.
Seize ill-gotten gains, issue fines for illegal behavoir? Sure. And ALL of the property and money thus gathered should go into a single large fund, all of which is distributed nationally to all taxpayers, or all citizens.
The idea being that it’s fine, indeed desireable, to fine criminals for criminal acts, but not desireable to encourage police departments to act like highway robbers.
Simply removing seizures, tickets, and fines, as instruments of funding would remove a moral hazard.
October 26, 2009, 3:32 pmMichael L. Weiss says:
Well, i also agree with this post
December 2, 2009, 2:11 pm(criminal procedure is a joke in this country– and sadly dems abet the situation)