The Future of Civil Asset Forfeiture

Civil asset forfeiture has long been a bipartisan issue that both sides of the country can unite behind. Democrats are in favor of undoing practices that indirectly target minorities and abuse criminal defendants. Republicans can rally against big government seizing property. Civil Asset Forfeiture has always been problematic as the practice allows law enforcement to seize property regardless of whether the defendant is even charged of a crime. The first cases testing the limits of Civil Asset Forfeiture are now in the Supreme Court and it’s no surprise that the Court frowns about asset forfeiture as much as voters and lawmakers do.

What Happened?

In 2005, Shannon Nelson was convicted by a Colorado jury of two felonies and three misdemeanors relating to the alleged sexual abuse of her four children. The trial court sentenced her to 20 years in prison and ordered her to pay over $8,000 in court costs, fees, and restitution. Nelson appealed the conviction and the case was overturned. Nelson was later acquitted of all charges. Nelson asked the state to refund the amount she had already paid, but Colorado refused, citing the state Exoneration Act, which allowed Colorado to retain funds from convictions unless the defendant can prove in civil court that she is innocent by clear and convincing evidence. Nelson lost in the state Supreme Court, but the Federal Supreme Court overturned Colorado’s ruling.

In the 7-1 decision, Justice Ginsburg writing for the majority argued that since Nelson’s conviction had been overturned, her presumption of innocence had also been restored. Since the law presumes that criminal defendants are innocent until proven guilty, states cannot write laws requiring innocent people to prove they are not guilty. Since the law usually requires that parties return any payments they receive if a judgment is reversed, Nelson’s payment of the fines should have been returned when her conviction was overturned.

Justice Thomas’s lone dissent is based on the argument that Nelson has no right to the money she had already given to the state. The dissent’s argument is peculiar as it reasons that since Nelson had not attempted to collect her refund through a law that her attorneys challenged as unconstitutional, no rights have been violated and therefore Colorado doesn’t have to return the money.

What Does This Case Mean Going Forward?

The Nelson case is significant, as it signals that the Court is now ready to rule on civil forfeiture cases.  The Court had the perfect excuse not to hear the case, as Colorado changed the Exoneration Act prior to oral arguments, thereby making the case moot, but the Court chose to make a ruling anyway, paving the way for tighter restrictions on civil forfeiture by creating this precedent.

And the Court should create this precedent. Although civil forfeiture started with good intentions, it has morphed into a process by which police and prosecutors can take property from citizens without having to meet standards such as “guilty beyond a reasonable doubt.” It would be destructive to our rights – and has already caused significant loss of property – if the police could simply change the criminal standards by moving issues into a different court. Despite Justice Thomas’s arguments, seizing a person’s property by changing the requirements for due process is still a violation of the Due Process Clause.