
Civil Forfeiture and the Supreme Court - martincmartin
http://www.economist.com/blogs/democracyinamerica/2014/02/civil-liberties-and-supreme-court
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Spearchucker
Not sure if I'm being overly paranoid, but it strikes me that life in the US
has been reduced to hoping one doesn't appear on the government's radar. If
you do, between this, an essentially biased supreme court; the NSA; a
militarized police; parallel construction by the DEA and FBI... - you're
pretty much toast if their interest is more than cursory.

~~~
opendais
More or less, yes. However, to be perfectly fair, this is basically true in
almost every nation in the world.

There are many, many laws in many, many countries that if you deal with a
biased judge you are screwed. It isn't just the US, sadly. Although the US is
at the point where its worse than the majority of the 1st world democracies.

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dak1
I find it interesting that Kagan, a former prosecutor, sees no problem with
this, while Roberts, a former defense attorney, does. How many members of the
SC are former prosecutors, and is there any further alignment with voting?

What is now required to restrict the numerous variations of civil forfeiture,
considering the 4th and 6th amendments, despite their clarity, do not appear
to be sufficient?

Is this something that can be remedied just with normal legislation, or are we
now in need of a new constitutional amendment?

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spacemanmatt
I'm of the opinion that neither legislation or a new constitutional amendment
would help, at this point. When the majority on the SC endorses this sort of
taking, they are the problem.

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gizmo686
SCOTUS never endorsed this sort of taking, they said that it is not
unconstitutional and (in this case) the defendants to not have the
constitutional right to challenge it.

A constitutional amendment could trivially solve this (once you get it passed,
which is highly nontrivial), while new legislation can solve it by either
making such forfeitures (or asset freezes) illegal, or giving the defendants a
legal (not constitutional) right to challenge it.

~~~
ahomescu1
The example in the article seems like it violates both the 4th (being
"unreasonable seizure") and the 5th (people being deprived of their property
without due process). The government just confiscated everything from those
people, expecting a conviction that would validate the confiscation.

~~~
zyxley
Agreed. To me the explanations as to how this kind of forfeiture work just
feel like absurd doublespeak to try and claim that the Fourth and Fifth
somehow don't apply.

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coldcode
I think the Supreme court no longer understands what the Constitution intends
and only what they vaguely remember from Kindergarten. After all the language
in the 4th and 5th Amendments are rather plain which they plainly have
forgotten.

For most people that's a definition of senility.

~~~
pdabbadabba
An honest question: have you actually read the opinion, or are you just
responding to the arguments you imagine them to have made in justifying the
stance the headline causes you to imagine them to have taken?

Is there anything in particular in the reasoning of the opinion that you
disagree with? I get it that civil forfeiture is very unpopular around these
parts (for the record, I'm against it too), but I think we all have a right to
expect the discourse on HN to rise above the level of bomb throwing, even if
(especially if!) we're on the same side.

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dvanduzer
Would anyone here with sufficient legal knowledge play devil's advocate that
this ruling could help set a precedent that corporate entities engaging in
criminal acts could have their assets frozen more easily?

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fiatmoney
That's already the case. The threat of this kind of asset freezing was used at
least as far back as the Drexel Burnham Lambert investigation in the 80s.

"The threat of a RICO indictment unnerved many at Drexel. A RICO indictment
would have required the firm to put up a performance bond of as much as $1
billion in lieu of having its assets frozen. This provision was put in the law
because organized crime had a habit of absconding with the funds of indicted
companies, and the writers of RICO wanted to make sure there was something to
seize or forfeit in the event of a guilty verdict. Unfortunately, most of
Drexel's capital was borrowed money, as is common with most Wall Street firms
(in Drexel's case, 96 percent—by far the most of any firm). This debt would
have to take second place to this performance bond. Additionally, if the bond
ever had to be paid, Drexel's stockholders would have been all but wiped out.
Due to this, banks will not extend credit to a firm under a RICO
indictment.[5]

By this time, several Drexel executives—including Joseph—concluded that Drexel
could not survive a RICO indictment and would have to seek a settlement with
Giuliani."

[http://en.wikipedia.org/wiki/Drexel_Burnham_Lambert](http://en.wikipedia.org/wiki/Drexel_Burnham_Lambert)

~~~
dvanduzer
I guess I need to read Roberts' minority opinion. My current assumption is
that a ruling the other way (in conjunction with everyone's favorite Citizens
United ruling) would significantly weaken RICO.

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esbranson
You would only think this decision is ridiculous if you haven't read European
court decisions (which are usually as inaccessible as they are irrelevant).
Because the foundation of this decision is based on English legal traditions,
which in general are much fairer than non-English European legal traditions.

[http://www.scotusblog.com/2014/02/opinion-analysis-no-
right-...](http://www.scotusblog.com/2014/02/opinion-analysis-no-right-to-
challenge-probable-cause-finding-underlying-asset-freeze-even-to-pay-your-
lawyers/)

