Supreme Court appears split during arguments on process of return of seized property in civil asset forfeiture cases involving innocent people

October 31, 2023
Ben Marquis

The practice of civil asset forfeiture, in which law enforcement agencies seize possession of cash or property suspected of being connected to criminal activity, is one that has been wildly abused in some instances and is a legitimate issue of concern when the individual from whom the property was seized is innocent or was never even charged with any crime.

On Monday, the Supreme Court heard oral arguments on the matter of civil asset forfeiture, at least with regard to the due process for innocent individuals seeking a timely return of their seized property, but the justices appeared to be split on the issue, according to the New York Times.

Some of the justices referenced the well-documented history of abuse of the civil asset forfeiture practice and seemed sympathetic to the plight of innocent owners trying desperately to get their property back quickly, while other justices seemed to indicate that the current drawn-out processes in place for the return of seized property were sufficient.

Process for returning property seized from innocent owners

The case heard Monday at the Supreme Court involves two women from Alabama, Halima Culley and Lena Sutton, who lent vehicles they owned to others -- Culley to her college-aged son and Sutton to a friend -- that were both seized by local police in separate incidents involving the drivers of those cars being pulled over and found to be in possession of illegal drugs.

It took more than a year for the women to finally have their vehicles returned to them even though neither had been arrested or faced criminal charges nor were even aware of the illicit drug habits of the individuals who had been driving the vehicles.

Given the arduous and lengthy process in Alabama for innocent property owners to have their seized property returned, the two women filed a class action federal lawsuit that, over the course of several years, finally ended up in the Supreme Court.

At issue in the case of Culley v. Marshall is the question of what sort of due process should be applied in a "post-seizure probable-cause hearing prior to a statutory judicial-forfeiture proceeding," with the two options being a Sixth Amendment-based "speedy trial" test as established in the Supreme Court's 1972 Barker v. Wingo decision or a more involved three-part test of various considerations that comes from the court's 1976 Mathews v. Eldridge ruling.

"We know there are abuses of the forfeiture system"

During Monday's oral arguments, according to the Times, Justice Neil Gorsuch said, "Clearly there are some jurisdictions that are using civil forfeiture as funding mechanisms," in reference to abuse of the practice to bolster law enforcement agency budgets, but seemed unsure as to whether this particular case was one "that presents the due process problem that we should be worried about?"

Gorsuch would go on to later wonder aloud, "How do we write a narrow opinion that does no harm here?"

Justice Sonia Sotomayor had no such qualms, per the Times, as she insisted that civil asset forfeiture abuse was "systematic" and said, "We know there are abuses of the forfeiture system. We know it because it’s been documented throughout the country repeatedly."

"These cases are most important for one group of people: innocent owners," she later added. "Because they are people who claim they didn’t know about the criminal activity. Many of these cases involve parents with teenage or close-to-teenage children involved in drug activity. The ones that don’t may involve spouses or friends."

Justice Elena Kagen also expressed skepticism about the arduous and time-consuming and often expensive processes that innocent owners like Culley and Sutton had to endure in order to get their vehicles eventually returned, and said, "There are real problems here, and those problems would be solved if you got a really quick probable cause determination. Why should we not do that?"

A serious problem that some justices don't fully see

According to Slate, it is estimated that at least $68.8 billion worth of property has been seized by law enforcement nationwide since 2000, and some 25 states, including Alabama, allow the law enforcement agencies that seized the property to keep it or sell it for 100% profit that is added to their budget -- a clear and perverse incentive for agencies to seize as much property as possible and make it as difficult as possible for owners, including those who are completely innocent, to get that seized property returned in a timely manner.

One might think that this would be an easy decision for the Supreme Court -- of course innocent people should have their seized property swiftly returned -- but some justices, such as Justice Samuel Alito, remain focused on the original intent of civil asset forfeiture -- starving criminals and gangs of ill-gotten gains -- and downplay the significance of the abuses of the practice by believing that the current processes for return are adequate to protect constitutional rights.

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