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SCOTUS Rejects Guilty Until Proven Innocent – Can't Keep Money from the Innocent (forbes.com)
437 points by rrauenza on May 3, 2017 | hide | past | web | favorite | 186 comments



Does this have any implications for the ridiculous seizures of property police carry out every now and then when they pull someone over who has a large amount of cash on them?

The whole idea of a court case titled, e.g., "State of Texas vs $45,000" is asinine. I'd love to see the SCOTUS lay down the law on that bullshit.


> Does this have any implications for the ridiculous seizures of property police carry out every now and then when they pull someone over who has a large amount of cash on them?

The author of the article clearly thinks so, as much of the latter part of the article is speculation about how it will impact civil forfeiture, but I doubt it.

This case addressed money that the state only had a legal basis for seizing in the first place because of a criminal conviction which was later overturned; a ruling that the conviction being overturned is conclusive as to such seizures, and that the state cannot require a separate civil lawsuit to recover the funds in which innocence must be separately proven (which essentially would let them keep money premised on a criminal conviction with only the evidence necessary to secure a civil judgement) is not likely to be applicable to forfeiture cases, where the basis for the seizure is a civil process independent of criminal conviction.


somehow I missed that.


It was easy to miss, as the article was broken into two pages. Almost everything dealing with asset forfeiture was on page two.


The author seems to think so.

"Armed with this ruling, the Nelson decision may set an important precedent to rein in another abusive civil proceeding: civil forfeiture. The parallels are striking"


I don't see how though - this ruling is explicitly about a conviction which has been overturned. If there's never a conviction related to the forfeiture in the first place, what bearing would it have?

Makes me wonder, could this ruling create a perverse situation where someone is arrested with a large sum of money, but the criminal case against the individual is flimsy, so the prosecution might be tempted to drop charges to ensure that the forfeiture can be kept rather than risk losing it if a conviction is overturned?


It is about a conviction which has been overturned but the parallel is there. Civil forfeiture is when officers take assets from persons suspected of involvement with crime.

  not guilty != convicted
  suspected != convicted
If the bar is convicted (and it should be) then the argument will be the same.


> Civil forfeiture is when officers take assets from persons suspected of involvement with crime.

Generally, not, as a matter of law. Civil forfeiture is usually premised on the item being gained through or used in illegal (though not necessarily criminal) activity, not necessarily by the owner (innocent parties with an interest in the property have some rights in forfeiture proceedings, separate from the right to assert that the basic premise of the forfeiture is false.)

This often overlaps with the owner of the property being suspected of a crime, but being owned by someone who committed a crime is not generally the essence of the legal premise.

That's quite distinct from what happened here, where the actual conviction is the legal premise, and thus the conviction being overturned voids the legal premise.


I know that these are different but the argument should be the same. The legal standard of conviction is not being met. In civil forfeiture, that standard is not being met a priori. In this case where the defendants are ultimately acquitted, that standard is not being met a posteriori. But the argument (IMO) is the same, the legal standard is not being met.


> The legal standard of conviction is not being met.

But it's clear, even outside of forfeiture, that that isn't a requirement for losing property to the state for wrongful conduct; civil process (with the government having a cause of action) does exist even outside of forfeiture, even for conduct which also has criminal punishment.

There has never been a principal accepted in this country that all government legal remedies against individuals require criminal conviction, which is what you seem to be asserting ad the principal with forfeiture.

It's clear that certain types of penalties require criminal conviction, and it's clear (now at least, though that should have been obvious before) that penalties expressly premised on criminal conviction require criminal conviction. But forfeiture doesn't really fall into either of those categories.


Can you expand on why civil forfeiture based on suspected criminality shouldn't require criminal conviction? Forcibily taking money from someone for a civil reason (e.g. child support) is obviously different from taking money because you suspect a criminal offense.


That's reasonable in this case, but I agree with CalChris that the more general case must also fallow. The conviction of a human being must be the bar.

At some point in time someone arguing for the state was able to successfully introduce property as a "defendant" of a legal action, and average people go along with that. This is, on the face of it, absurd.

All of law exists only to a single purpose, the regulation of actions between humans, not trees, not dogs, not bits of paper with numbers printed on them, human beings.

Even someone's example of confiscating counterfeit money is not an action against the wrong doing of the money. It's an action against a human being who believed they were in possession of the money. They are the ones who suffer harm.

It is only reasonable for the state to confiscate the "money" from the subject, in this case because it is not money, and as such the harm to the subject was done not by the state's action of confiscation, but by the counterfeiter's action of tricking the subject into accepting it. It follows that it is not reasonable for the state to replace the fake money with real money because that would cause harm to a third party (the state). However, the subject would have a reasonable clam of restitution against the counterfeiter should they be convicted, and the state should support that claim.

Labeling an action as forfeiture, as in the case of civil forfeiture, implies a default due to some failure to perform, but that should be proven to the same degree as any question of law. The property does not act, or fail to act, only people can do that. Therefore the state must be obligated to prove that it has reasonable clam to the property, and that the party injured by confiscation are themselves guilty to the degree that such injury is warranted. AND as is the typical structure of law the state suffers the burden of proof to offset the potential for abuse of power.


But if we're assuming the accused is guilty of some crime with which the booty can be charged, can't you also assume that a man who has been declared not-guilty is guilty of some tangentially-related crime that still allows the civil asset forfeiture?

IE "John Smith is found not guilty of trafficking for the drugs we thought he had on him, but he still could have got the $5000 from some other incidence of trafficking we failed to discover and therefore we're still charging his assets with trafficking".


Not entirely sure I understand what you're saying, but I don't believe that's the how it works. Civil forfeiture is currently allowed because the property is "charged" with a "crime", and because it's not a person it doesn't have the same protections as people (i.e. innocent until proven guilty).

So the "innocence" of the property can't be proven, and thus it is forfeited. So rather than "He still could have gotten the $5000 from a crime", they're saying "The $5000 could still have been transacted in a crime", and the guilt or innocence of the person it was taken from is considered irrelevant.


One interesting contrast for this is in the legal requirements for dealing with counterfeit currency once it's discovered. That really does seem like a case where the person holding the money did nothing wrong, but the money must still be forfeited because the money itself is "doing something wrong" by being counterfeit.


It does, but not immediately

> Ginsburg forcefully rejected Colorado’s argument that “[t]he presumption of innocence applies only at criminal trials"

So now all the judges in the land have to rely on that. So people just have to sue in every single state, and federal circuit on civil forfeiture cases, and the judges will have to lean on the new Supreme Court opinions, or get it back to the Supreme Court so that they can clarify specifically on a civil forfeiture case.


I keep getting this vision of America 200 years hence where RBG is as revered as Lincoln for saving the union in a dark time.


That awkward moment where you realize that you like Trumps court


Gorsuch didn't take part in the decision.

(page 3: https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf )


It suggests that the court might at least be open to revising the rules relating to civil forfeiture on some future case.

However, it doesn't change the rules, and it's by no means clear that the court would change the rules, if the question comes before it, nor does it suggest that the question will come up anytime soon.

If the court had ruled the other way in this case, there would be no chance of fixing civil forfeiture. So I guess you can say that this isn't a "no", but it's also not a "yes". It's not even a "maybe". But the door is still open?


Edit: forgot to say that no, this won't have a direct bearing on civil asset forfeiture of the kind you describe, because that only takes place where the identity of the property owner is unknown. The result in terms of not allowing the state to take money from people whose criminal convictions are overturned is great though.

--

The idea is not asinine, it's perfectly rational.

Cops do a drug bust and all the criminals flee. (I'm personally opposed to drug prohibition but it's the law and the easiest example so I'm going with that for simplicity's sake.)

At the scene: 3 bricks of cocaine and $1m dollars. Cocaine is contraband so the cops don't need permission to take it, they can just help themselves to a few fat rails and then throw the rest in a furnace, resell it, or whatever.

What about the million bucks? It's property. there might even be a legitimate reason for it to be there (eg suppose it had just been stolen from a bank but the cops had yet to connect the bank robbery with the drug deal). The cops can't just take it, because if that was allowed then cops could just help themselves to any property they see and how would people ever know what happened to it? OK, so there must be some sort of process to document their taking possession of it until said possession is successfully challenged. That's a court's job.

On one side, the state entity that employs the cops. On the other...who? The (presumed) drug dealers fled so it's not obvious who the other side of the case should be. American law is built from the ground up around adversarial argument between parties with conflicting interests, so for administrative convenience we'd like to have the case be 'Someone v. someone else' like every other legal case. If we don't know who, let's treat the unclaimed property as its own entity until someone says different. Hence 'State of Jurisdiction v. $1 million.'

Practically speaking, this works fine most of the time. If you keep up with legal case news, in any port city you'll see a lot of cases like 'US Customs v. 1000 leather handbags' - sometimes because the handbags in question are knockoffs, sometimes because the paperwork got lost and a shipment ended up in the wrong place, to be later claimed by the rightful owner with documentation.

Asset seizure by police has been abused to hell and back, and I have no hesitation in saying that many police officers and institutions are corrupt. But the legal mechanism for classifying abandoned property is not the problem. That's a purely administrative convenience that is entirely neutral in nature. If you didn't have it, then cops would just label the money as 'evidence', it would disappear, and the problem would be worse because there wouldn't even be a paper trail to follow.


Civil forfeiture is very much not limited to when the property owner is unknown. That is perhaps where the practice started in some distant past, but forfeiture has expanded to include the seizing of property as long as there is a pretence of a crime, but no conviction nor usually even an arrest.

Here's a some search hits under "civil forfeiture cases"

[1] NFL defensive tackle Letroy Guion was stopped and had 190k of cash seized. He had bank statements to prove the provenance of the money.

[2] Overview of cases and depts sued for systematically seizing cash from people stopped, but never charged with a crime.

[1] http://www.huffingtonpost.com/2015/02/11/civil-asset-forfeit...

[2] https://www.forbes.com/sites/instituteforjustice/2014/03/12/...


Your characterization of the first article is misleading:

> Guion was charged with two felonies, one for the marijuana and another for possession of a firearm in commission of a felony. Police secured the cash, though Guion’s agent claims the money was from NFL paychecks and that he has bank statements proving it was not related to the drugs. A spokesperson for the Starke Police Department told The Huffington Post they have not received this documentation and that they gave Guion a receipt stating their intent to permanently seize the cash.

Constitutionally, seizure (the money has not yet been forfeited, only seized) only requires probable cause. Finding a large amount of cash next to almost a pound of illegal drugs is undoubtedly probable cause to conclude that the money is the proceeds of illegal activity.


Ok, I initially didn't research farther than the inital article. At this point:

http://profootballtalk.nbcsports.com/2015/03/24/letroy-guion...

With a plea deal and 5k fine & court fees, "the charges were dismissed without adjudication of guilt.

There’s still a civil forfeiture case pending, so he can get his money back."

So now there is no criminal basis for the state holding onto his money...

Edit: 5k court fees -> 5k fine & court fees


A plea deal involves an admission of guilt to something, otherwise prosecutors would have no incentive to offer it. Exactly what is another question, but I don't care enough to research the case.


For many people, even if completely innocent, a plea deal is a smarter choice than going to trial. So at the very least they are guilty of taking a plea deal. Possibly something more, but that can't be inferred.


But no guilt has been established, and not even a formal charge at this point - so we are left with a question of how can a citizen be deprived of their property by the gov't when neither of these has been established.


A guilty plea is a formal admission of guilt.


Perhaps I don't understand the meaning of this then: "the charges were dismissed without adjudication of guilt."


I am not defending the practice of civil forfeiture, and I said so, though obviously not clearly enough.

I was explaining the operational legal reason for the existence of court cases in which one of the parties is an an inanimate object, nothing more.


Apologies if I overemphasized one portion of your comment. I actually thought it was informative, but think it lacked that one critical element of conflict in the practice as a whole. I now think I understand what you meant in the phrase "the identity of the property owner is unknown" is that this is an assumption under which the theory of the laws of forfeiture is operating.

Can you perhaps expand on why this assumption hasn't been successfully challenged as a basis for overturning many of these other cases where there clearly is a property owner? That's the head scratcher to me in how long this practice has continued.


As I said (but should probably have said at the beginning rather than the end) I think the use of civil forfeiture in practice is frequently horribly corrupt. While the basic idea has merit - we don't want criminals to profit from ill-gotten gains - the application of that principle frequently turns into an asymmetrical and highly politicized contest between who can better manipulate the rules, to the point of drastically undermining respect for the principles they were established to uphold.

I'm sorry that I don't always make it clear enough when I'm making a narrow technical argument vs when I'm making a sweeping ideological one. I am 100% against police departments being able to profit from civil asset forfeiture, both because the incentives for abuse become overwhelming and because the existence of abuse is then used by others as a pretext for undermining the system within which such rules originate.

My personal concepts of the relation between individuals, society, government, law, and justice, are radically outside the mainstream, which is why you should consider switching to a monarchy and installing me as King, or Queen. On the other hand, distilling those radical ideas down to a manageable set of operational principals that don't require everyone to be a philosopher is difficult, which is why you should probably hold off on the coronation for a bit.


You also explicitly claimed that the practice of civil forfeiture doesn't include forfeiture of property whose owner is known:

> this won't have a direct bearing on civil asset forfeiture of the kind you describe, because that only takes place where the identity of the property owner is unknown


Yes, that was inaccurate, but it was also in a quick and explicit edit correctly distinguishing the practice from the circumstances of the case described in the original article and is obviously not part of the core argument I made.

I also frequently make typos and consistently spell a few words wrong. Are there any other nits you'd like to pick?


From the examples I have read on Civil forfeiture in recent years it seems like a complete joke. It seemed to be used a lot to basically outright steal money from people for the city/state or whatever government entity. Regardless of how it started some of the cases seem that it would be shameful even in some of the most corruption ridden country. At least in those places everyone might call this the norm but they would at least call it theft.


"Asset seizure by police has been abused to hell and back, and I have no hesitation in saying that many police officers and institutions are corrupt."


There is ZERO legal basis for asset forfeiture UNLESS someone is charged with a crime. Your property is really part of you and no one, no government has any legal right to imprison you (which includes your property) unless you are charged with a crime. This is the most basic human right -- habeas corpus and due process.

I really hope the practice is stopped because it is unconstitutional and abused horribly. In terms of abuse, after the police take someone's money, say they find $10k in cash on you. The police demand proof of its origin (now this of course is once again Guilty until proven Innocent which was hopefully struck down now by SCOTUS), then you go to the police with your proof. The police will cast doubt on your proof, tell you to go to Court and spend $5k of legal fees to reclaim your $10k OR they very kindly say let's just refund you $7k and call it even. This is regular practice. Police stations have been found buying helicopters and other things with such funds (the Washington Post had a great expose on this).


Your property is really part of you

':-|


Who dissented? I would be interested in reading the dissent and seeing if it was based off of some technicality of this case, or a belief that requiring someone to prove their innocence wasn't a violation of their Constitutional rights.


Part of Thomas's dissent seems based in the fact that Nelson and Madden had been convicted, so at that point in time the state was entitled to those fees, and that the fees went into the public pool. The later overturn of convictions didn't change the fact that the state was at one point entitled.

Thomas: "It does not follow, however, that petitioners have a property right in the money they paid pursuant to their then-valid convictions, which now belongs to the State and the victims under Colorado law."[1]

I believe in the value of a diverse court, but I rarely agree with the logic of Clarence Thomas.

https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf


How can you possibly agree with that? If overturned convictions are still financially valid then you have no de facto right of appeal (in financial disputes).


It's not so much that they are financially valid, it's whether you consider the money to have been taken by the state, and that it should compensate you for the money it took, or if your money is being held by the state, and it should return it.

If you consider that it should compensate you for the money it took off you, then Colorado has a law on the books governing the compensation process, which Thomas (and the previous court - the Colorado Supreme Court) thinks you should follow.

The majority opinion seems to be that not quickly returning (and it considered it as returning rather than compensating) the innocent parties property offends their right to due process.


The entire premise of appellate courts (and by extension the Supreme Court) is that if the government does something wrong it should be reversed. Ignoring this fundamental truth seems completely insane.


It sounds like there is really no such thing as an overturned conviction. There is no constitutional right, apparently, to being "made whole" if your "conviction" is "overturned".


>There is no constitutional right, apparently, to being "made whole" if your "conviction" is "overturned".

Which in the general case is pretty clearly true. If someone is arrested and found not guilty, have their conviction overturned on appeal, etc. they're not in general entitled to payment for lost wages, legal costs, etc. It seems reasonable to consider this a different situation in that it involved a specific fine but I can at least see the counterargument that it's not.


I rarely agree with Thomas and certainly don't in this case. I find his rationale to be nonsensical.


OP didn't say they agreed with it. In fact they implied that they did not agree.


I appreciate his "generally" staunch defense of constitutionally enumerated rights, but his logic tends to fall apart once applied outside that scope. His weak interpretation of the 4th amendment is particularly disappointing to me.


His (and other conservatives) repudiation of the ninth amendment is even more, um, disappointing.


I'd have said the opposite - that Thomas et al are closer to getting it right (although nobody seems to quite get all the way).

I'm guessing that you're not making any distinction between negative rights (which is what the Bill of Rights and the rest of the Constitution deal with) versus the more modern idea of positive right.

Negative rights are those where the government is constrained from interfering with you; freedom of speech and the right to keep and bear arms are obvious examples of this.

Positive rights are those where we say that a person has an right to GET a thing, and so the government must be obligated to provide it. The Constitution does not guarantee any of this [1].

In that context, it seems correct to view 9A as saying that there exist additional unenumerated negative rights. But trying to do so with positive rights eventually gets into trouble, because there's no clear ceiling on how much of something is due to each person.

So for example, there's a thing going around Facebook with Jimmy Kimmel about healthcare, which has everyone saying that no one should never need to consider finances when their child is sick. This is plainly false in the general case, because it would imply infinite resources. In the real world, there will always be a point at which we must say "no more".

IMHO, given that the Constitution was written in the context of the Enlightenment idea of negative rights, and positive rights hadn't been part of the discussion; together with the fact that the limits of positive rights are thus left completely undefined, I'm quite OK with the Court deciding to keep a tight leash on that.

[1] Although I suppose the right to an attorney when accused is kinda fuzzy. But it doesn't suffer from the problem of open-ended obligations that I discuss later.


I think 9A and the rest of the Bill of Rights actually discuss what are now known as negative and positive liberties.

The rest of the Constitution discusses various powers accorded to the Federal Government and how it is structured.

https://en.wikipedia.org/wiki/Positive_liberty

https://en.wikipedia.org/wiki/Negative_liberty


>So for example, there's a thing going around Facebook with Jimmy Kimmel about healthcare, which has everyone saying that no one should never need to consider finances when their child is sick. This is plainly false in the general case, because it would imply infinite resources. In the real world, there will always be a point at which we must say "no more".

That's not "plainly" false, unless you know some medical treatments that cost an infinite amount of money to perform. If we assume that less than 1% of patients are catastrophically expensive, then based on actual data it looks like dropping them all would save less than 20% of total spending, possibly a lot less.


I just happened to bump into this article, describing how Wellmark Blue Cross Blue Shield, "the dominant company in [Iowa]’s individual insurance market", is pulling out of the market, leaving only one provider standing. Their explanation is that a primary driver is a single patient whose care is costing on the order of $1M per month.

http://www.latimes.com/business/hiltzik/la-fi-hiltzik-iowa-2...


That is a serious problem, but it's solvable. As a country we can handle these patients. Like the article says, full-on single payer wouldn't have that problem. Or we could force all insurers to pay into a pool that covers super-expensive patients.


> The Constitution does not guarantee any of this [1].

That depends very much on your interpretation. Habeus corpus. The right to bear arms. The right to confront witnesses against you. Trial by jury. Equal protection. All those seem like "positive rights" to me.

Furthermore, it seems to me that you are doing exactly what the 9th amendment prohibits: you are extrapolating from the enumerated rights to make inferences about non-enumerated rights, and to conclude that because all of the enumerated rights fit some pattern that you discern, all of the non-enumerated rights must fit the same pattern, and so you can deny and disparage those non-enumerated rights that don't fit your perceived pattern.

Well, no. The 9th amendment was specifically intended to prohibit this kind of reasoning. Some of the framers didn't want a Bill of Rights at all because they were afraid (and apparently rightly so) that people would mount exactly the kind of argument that you are mounting.


Habeus corpus. The right to bear arms. The right to confront witnesses against you. Equal protection. All those seem like "positive rights" to me.

I'm not sure you understand the concept. It's never been seriously suggested that the right to keep and bear arms implies that the government must supply a gun for me. The right to habeas corpus doesn't say that the government has to do anything to make me comfortable, just that I retain ownership of my person. Equal protection doesn't say anything about equal outcomes, just that the law must not view any of us differently.

There really is a fundamental difference in saying that the government must not do something (the negative rights angle), versus that the government provide us something (the positive rights angle).


OK, trial by Jury, as provided in both the 6th and 7th amendments, is definitely a positive right even on that definition.


Almost, but really it's specifying conditions by which the government can revoke negative rights to life, liberty, property, etc.


Let's not get lost in the weeds here. The question at hand is: The government takes my money because they think I committed a crime. The government is later proven to be wrong. Do I have a right to get the money they took back?

To me this is a total no-brainer: the answer is obviously yes, notwithstanding that the Constitution does not explicitly say so. I don't see any point in quibbling over what flavor of right this is.


The term "rights" means different things in different places. In the realm of the Constitution, it almost exclusively refers to limits of the (Federal!) Government.

In terms of a contract or in modern welfare state entitlements (such as Social Security), "rights" indeed refer to benefits owed. Kimmel wasn't referring to the Federalist Papers when he made his speech; it was an informal humanitarian modern-welfare-state understanding of "rights".

I agree that there should probably be some limit to the amount an insurance company needs to fulfill claims, otherwise our premiums are likewise unbounded. The NHS and Canadian health systems appear to have rate limiting aspects (perhaps unintended) that have the outcome of bounding costs.


A conviction that is reversed is reversed only because it was not, in fact, legally valid at the time—that is the whole point of the appellate process—so whether or not Thomas' logic is any good, it starts from a false premise. And one which Thomas, having been an appellate judge for quite some time now, has no excuse for getting wrong.


I don't know that this comment really adds anything, but I think that any conversation about Clarence Thomas should include his minority position in this case

http://www.nytimes.com/2009/06/26/us/politics/26scotus.html


>Part of Thomas's dissent seems based in the fact that Nelson and Madden had been convicted, so at that point in time the state was entitled to those fees, and that the fees went into the public pool. The later overturn of convictions didn't change the fact that the state was at one point entitled.

I think it's an interesting argument. But I think you also have to consider why the money is considered to be "in the public pool", and whose interests are at stake when it is. It is clearly in the defendant's interest that the money is still considered a taking as long as he is alive. It is only in the state's interest in the event that the defendant is exonerated or in the case that the money must be tracked explicitly. It is an observational fact that some convicts will be exonerated.

It seems therefore that the interest of the state must outweigh the interests of exonerated defendants in order for us to assume the money can be considered only as part of the public pool after it is taken. When we ask whether it is a compelling interest that the state be able to retain money from vacated convictions or that all convicted money be tracked, it seems that this would be the case only if the state's financial status were dependent on money obtained from criminal convictions. Such a state would seem to resemble pre-civilized governments and it is this assumption that I reject with due horror. The state must not be an organism dependent on judicial takings.


Read between the lines; Alito's concurring comment and Thomas' dissenting comment both support a sharper delineation and addressed the more substantive issue.

The majority relied on "procedures" and "due process".

Alito focussed on the fact that they were not guilty and obviously had a right to get it back.

Thomas' dissent took the majority to task for not providing a clear opinion as to whether the category of the funds in this particular case was in the same category as attorney's fee and other costs that you clearly do no get back.

Unfortunately I don't think this case provides much of a basis for overturning civil forfeiture.

(NB I am not a lawyer; not even American!)


I think it makes some procedural sense. After all, the state was entitled at the time it took the money, and if the state insists, you'd have to sue them to regain that money. It's the same with any other transaction where the assumptions in that transaction were found to have been (non-maliciously) incorrect.

But from a... well, moral perspective (I hate to bring morality into a legal discussion but it is really where I draw my sense of these things), it's wrong because it provides a path for someone who has done no wrong to be harmed without providing a path for them to be restored.


It does not make even procedural sense. The state is not entitled (at least subject to full return) until the whole appeals process is finished. Consider the opposite case to see how the state deals with money, if the IRS accepts your tax return but later finds fault with it, can you just say sorry? No you pay everything plus interest. You'd pay a penalty too if it was willfully wrong. Likewise, if the state took the money maliciously, they should even pay a penalty. In no case should they be entitled to clear the ledger like they did.


It looks like Justice Thomas wanted to write a dissent because "But both opinions bypass the most important question in these cases: whether petitioners can show a substantive entitlement to a return of the money they paid pursuant to criminal convictions that were later reversed or vacated.". It starts on page 25 of the PDF. It is deep in procedure.

It ends with the summary:

No one disputes that if petitioners had never been convicted, Colorado could not have required them to pay the money at issue. And no one disputes that Colorado cannot require petitioners to pay any additional costs, fees, or restitution now that their convictions have been invalidated. It does not follow, however, that petitioners have a property right in the money they paid pursuant to their then-valid convictions, which now belongs to the State and the victims under Colorado law. The Court today announces that petitioners have a right to an automatic refund because the State has “no legal right” to that money. Ante, at 8, n. 11. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law. If petitioners’ supposed right to an automatic refund arises under Colorado law, then the Colorado Supreme Court remains free on remand to clarify whether that right in fact exists. If it arises under substantive due process, then the Court’s procedural due process analysis misses the point.

I respectfully dissent.

I'm personally glad it went the way it did, but I'm really not a law type to figure out if it went that way in a good way.


"The law doesn't say that they should get their money back explicitly, therefore the state is free to rob citizens blind while they have the chance with absolutely no repercussions".

God I hate this judicial philosophy. If legislation was perfect we wouldn't need judges. Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation.


> Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation.

Yes it is, by definition. Advocate for better legislation, rather than expect lawyers to pinky-swear not to use whatever loopholes they find.

An analogy might be: "Every bug or unescaped input in my application is not valid grounds for attackers to pwn my server! How dare they!"


The legal system is different than code in a very important way: the law is written to be applied by intelligent people working (mostly) in good faith. This is why judges have discretion (https://en.wikipedia.org/wiki/Judicial_discretion), and also why tort law exists (https://en.wikipedia.org/wiki/Tort).

The attitude in your comment, that the law should be interpreted with perfect strictness and machine-like lack of concern for obvious blunders, is in my opinion really hurting the United States today.


> The legal system is different than code in a very important way: the law is written to be applied by intelligent people working (mostly) in good faith.

I disagree. Code is also designed that way. The humble admission and responsible actions to secure against abuse are the same. The difference is in the specific interpretation timings. Code is a priori deterministic and law is a posteriori deterministic, with exceptions on both sides (code environment or human interpretation changes).


Í'd like to mention the good book: https://en.wikipedia.org/wiki/The_Case_of_the_Speluncean_Exp...

It delves into multiple possible stances regarding the nature of laws. I think Justice Thomas falls squarely into one of the explored stance.

PS: also, an extended version: https://legacy.earlham.edu/~peters/writing/cse.htm (that's the one I have)


Lawyers and judges are not just hardware interpreting and 'running' the 'code' of law. Law needs to be flexible to handle all manner of unsanitized inputs, and judges need to have leeway to (attempt to) serve justice and the spirit of the law. Laws that are sufficiently written to explicitly close every loop-hole or guard against all malicious 'input', would be monstrosities that no one human could ever truly know. The US tax code strikes me as something that has gone in that direction.


>Law ... monstrocities

We already have that, though, and "sufficienty written" is a very dangerous standard.

The easiest way to guard against "all" malicious input is write a vague law without clauses that demand mens reas, which means that regardless of whether or not you knowingly broke the law, by violating its provisions, you automatically did.

The leeway to "serve justice" also tends to be the leeway to condemn justice or to interpret law in ways it was never designed to account for.

The lawcomic, written by a lawyer, has a good section about the kind of overcriminalization you're discussing:

http://lawcomic.net/guide/?p=1031


> The easiest way to guard against "all" malicious input is write a vague law without clauses that demand mens reas, which means that regardless of whether or not you knowingly broke the law, by violating its provisions, you automatically did.

Most criminal laws have a mens rea component (strict liability is rare), but almost none of them have a requirement of knowing that the act was illegal. "Ignorance of the law is no excuse" is not limited to strict liability offenses.


"The easiest way to avoid loopholes" and "frequency of use in real life" are not equivalent.

I'd certainly argue there are plenty of vague, overbroad laws, regardless of the frequency of strict liability's usage.

I'd further argue infrequency actually increases the likelihood that otherwise innocent individuals are swept up in such cases: they have less reason to suspect that they've done anything wrong.


> ... not just hardware interpreting and 'running' the 'code' of law.

We're heading that way in terms of contracts and blockchain.

And insofar as "the law" is a contract between the citizens and government, you'll find more and more government regulation being implemented in blockchain in the future.


I'd put it a different way. It is the job of a program to be free from faults, as much as possible. It is the job of a firewall to protect programs from being exploited, as much as possible, when there are faults.

It is the job of legislators to write laws that are as free from faults as possible. It is the job of judges to protect the people from unavoidable faults in legislation.


What games (rulesets) cannot be broken? Where the spirit of the game cannot be violated by a strict intepretation of the rules.

Tic tac toe? Rock, paper, scissors?

Are you suggesting the law, any law, can ever be made so simple?

https://en.wikipedia.org/wiki/Nomic


I mean, the existences of such bugs aren't valid grounds to exploit said bugs. Attackers do so anyway, whether because of some different ground that's actually valid (like being authorized to conduct a penetration test) or because they don't care about whether they have any such ground.


Thomas' opinion would seem to point to a "great" way for small municipalities and courts to raise money.

Just pull people over for no reason whatsoever, give them a ticket for "enforcement goal of the week," and collect the fines as most people will pay it. If anyone eventually disputes and wins, the local govt still gets to keep the money, since they at some point in time "justly" stood guilty.

Or arrest and convict people of jaywalking, or any other made up charge. As long as you have a judge that will go along with this (the communities in and near Ferguson MO are an example), it's a "great" way to collect money. Just convict them, no matter what.

As civil forfeiture is increasingly scrutinized, it will not surprise me if streamlined convictions and 1 day "time served" sentences become common along lonely stretches of Interstate 80. "There, we fixed it."


If you can "just" convict people of anything no matter what, we probably have bigger problems.

Not that I particularly agree with Thomas, but assuming that it's trivially easy to convict anyone you want of a criminal offense is quite a big leap. (And it doesn't just require a compliant judge -- people could always ask for jury trials).


We do have bigger problems.

> The Justice Department's report said Brockmeyer approved the creation of additional fees, "many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared."

> Just about every branch of Ferguson government -- police, Municipal Court, City Hall -- participated in "unlawful" targeting of African-American residents for tickets and fines, the Justice Department concluded.

http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/in...

It looks like it was trivially easy to come up with any scheme they wanted to collect money from people too vulnerable and poor to fight it. If the Michael Brown shooting hadn't happened, the area wouldn't have received the scrutiny it did, and my assumption is that the scheme would still be ongoing. I'm sure this happens elsewhere; the smaller the community and the more chummy the players, the easier it would be.


I'm sympathetic to the idea that we have structural racism in a lot of places, including the justice system. But trying to combat that by worrying about whether later-exonerated convicts get some of their fees back is like worrying about the amount of scarring caused by a decapitation.

And this case was about people who had gone through entire non-trivial justice system processes for non-trivial crimes, were convicted, and later had those convictions overturned. It's not about fines and speeding tickets.


But it would be about those trivial things as it gets implemented down in the smaller communities. That's the point: if an opinion like Thomas' held in the large, it would make it easier to get away with trivial things in the small. It degrades justice, at the core and at the edges.


But it wouldn't.

Thomas' opinion is very strictly based on the idea that there was once a legal conviction, that was then overturned. That's not something that happens very much in the legal system, and it particularly doesn't happen very much for the small annoying offenses like traffic violations that you're talking about, because it's just not worth the time and effort to overturn them.

He didn't say, "It's cool to fine someone absent a conviction, and then when or if they successfully avoid a conviction, do not give them back their money."


It happens a lot with parking and traffic offenses. "You will be assumed to be guilty and lose the right of appeal if you do not respond to this within x amount of time."


Sure. And, since you can't appeal, you couldn't get later exonerated anyway. This ruling has nothing to do with that.


Yep this. In Thomas's world, local government would fast track petty convictions to continue to fleece us. It would incentivize terrible things like you mention.

Not to mention, perverse incentives would instantly appear like cops worried about their pensions and budget planting evidence on people for convictions. Nice car you got there, shame I found cocaine in it. Now it belongs to the state because a plea is better than $50,000 in lawyer fees to fight a corrupt police department you probably can't even beat. Even if you could, spending $50,000 to save a car worth $10,000 doesn't make sense.


Ah yes, the old CyberRebate business model


> "...whether petitioners can show a substantive entitlement to a return of the money they paid pursuant to criminal convictions that were later reversed or vacated."

In other words, the petitioners can't prove that they have a legal right to a refund. Apparently there is no Colorado law saying that if your conviction is overturned, the state will refund those fees.

That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision.


There is no right invented from "thin air". The money was taken premised on a criminal conviction. The conviction was reversed on review, which means it was not a valid conviction (this isn't a pardon or other act negating the effect of a valid conviction, it's a legal act determining the validity of the conviction.)

The premise which justified taking the property was invalid, thus the state had no legal basis to deprive the victim of property.

Now, if this was a question of the personal liability of agents of the state in taking the money, the fact that they had a reasonable good faith belief that they acted based on a a valid legal premise would probably be a valid point, if governmental immunity didn't make it moot in the first place. But this isn't about that.


> That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision.

Sure, but there's probably no incentive for legislatures to implement this fix. The loophole enriches their constituent law enforcement organizations, while also relaxing their budgetary needs. And most private citizens probably aren't going to care much either way, especially since the loophole can be framed as pro-law and order.

So if the law as written is encouraging abusive behavior from law enforcement, and the legislative incentives are misaligned to prevent the easy fix, how else could it get fixed?


> Sure, but there's probably no incentive for legislatures to implement this fix

The incentive is the same as the incentive for them to do anything: democratic process and popular pressure. If this is such a no-brainer it should have wide support among Colorado voters. This is much better than having unelected federal judges thousands of miles away declare the issue by fiat.

> The loophole enriches their constituent law enforcement organizations

A. It's not a "loophole", it's simply the lack of any explicit law directing refunds. B. I'm not familiar with Colorado state finances, but I seriously doubt that refunds from vacated convictions would have any significant budgetary impact at all.

> ...if the law as written is encouraging abusive behavior from law enforcement

Again, this isn't "abusive behavior". It's simply lack of a law authorizing what the petitioners demand. I wouldn't be surprised if it was simply that nobody thought to write and pass the law, given the relative rarity of vacated convictions.


> It's not a "loophole", it's simply the lack of any explicit law

That's literally the definition of a loophole - something the letter of law fails to account for, but the spirit of the law would have intended to cover.

I was writing in a pragmatic register, not a legal one. You can't consider the ethical/practical consequences of the law using only formal legal language - there's no legal definition of what constitutes a loophole in the law, nor could there possibly be.

> Again, this isn't "abusive behavior".

Again, not referring to a legal standard of abuse. If you were arrested and wrongly convicted, had all your assets seized, and then had your conviction vacated but the state refused to return your property, would you feel abused?


Supreme Court judges are elected by the same lawmakers that write laws in the first place. Their rulings also cover more than just one state. So, this patches a wide range of laws not just for that specific state, but every state and federal law.

Further, the democratic process and popular pressure has little impact on most laws. The context is first personal conviction as most bills have minimal impact on getting elected, next attention as bills are mostly to long and complex to read and understand in their entirety. Sure, a bill might only be ~200,000 words, but this is a diff that's updating other complex legislation which will then get applied in a huge range of complex situations.

So, honestly having a small group which can debug the law in response to specific escalations is not only reasonable, but also vital.


Thomas’s dissent is not about whether as a policy matter, someone should receive their money back. I suspect everyone thinks the Petitioners’ should get refunds. Rather, it’s about whether the Due Process Clause of the Fourteenth Amendment provides that right.

In his view, based on previous precedent, it does not. As a matter of previous precedent, the majorities approach is somewhat legally strained based on the Due Process Clause. But as a matter of policy, the majority's decision seems correct.


A similar situation to consider: drug law repeal.

Let's assume some drug law is relaxed in the future. Do all prisoners currently serving sentences get released automatically? I don't think so, since they were convicted and sentenced under current law. I believe it would take an additional act of the legislature to release those prisoners. (This Supreme Court ruling seems to make this step unnecessary in the case of money+overturned conviction)

And let's not forget that they won't get anything for the years and opportunity lost while in prison for things that are no longer crimes.


You seem to be confused about an overturn based on appeal vs. ex post facto application of law.


If I understand correctly (and IANAL), that dissent does not leave room for civil asset forfeiture.


From my non-lawyer skim of the dissent, this appears to be its core:

>The Court today announces that petitioners have a right to an automatic refund because the State has “no legal right” to that money. Ante, at 8, n. 11. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law.

In the rest of the dissent, Thomas discusses the due process that was available under Colorado's Exoneration Act and indicated that this law did not automatically entitle convicted persons to an automatic refund of any fees associated with their convictions, partially because state law ordered that money to be dispensed via victim compensation funds.

This highlights a potential chilling effect of this ruling. As states are now on the perpetual hook for any monies that may be confiscated from someone who is eventually exonerated (and in the case of white-collar crime, this could be millions of dollars), and since you can't know that someone won't be exonerated in the future, states who are interested in keeping their budgets balanced will be incentivized to hold such money in escrow instead of dispensing it for victim's relief.

If the exonerated individual could demonstrate his legal entitlement to those monies, he was free to bring a suit under the applicable statutes to do so.

Because the law applied equally and anyone could seek relief, Thomas appears to believe it does not violate the 14th Amendment.

If the people of Colorado did not think this was fair, it was within the purview of their representative government to change. The role of SCOTUS is not to make sure the world is fair; it is to review statutes for compliance against the Constitution and other relevant federal law.

In short, it seems an accurate summary would be that, in Thomas's opinion, the Court's opinion was "activist judgeship", as they merely thought it "intuitively and rhetorically [appealing]" that a state would not be entitled to the funds already paid by an exonerated person and already dispensed by the state, but could point to no law codifying this "intuitive and rhetorical appeal".

Again, IANAL.


IANAL either, but it sounds like Thomas is saying that the Colorado Exoneration Act was carefully written to specifically cover cases like this in that it enumerated the rights and entitlements of those exonerated who follow that process, and the court's majority opinion "does not seriously attempt to ground [their opposite] conclusion in state or federal law. If petitioners' supposed right to an automatic refund arises under Colorado law, then the Colorado Supreme Court remains free on remand to clarify whether that right in fact exists. If it arises under substantive due process, then the Court's procedural due process analysis misses the point."

This is an archetypally typical Thomas opinion, melding both a very literal and narrow reading of the Constitution and laws with a strong preference towards states' rights.

Meanwhile, Alito's concurring (with the majority) opinion is a fascinating read in its own right, building on similar rationales to those of Thomas while using a comparative, devil's advocate approach to illustrate absurdities in both the laws and the interpretation of the majority, yet reaching a pragmatic conclusion that happens to concur with the majority in its final judgment.


The escrow loss problem is a probabilistic game though, and one I'd be willing to bet that someone enterprising could offer insurance for; whether it's loans using it as capital, or actual insurance.


This is the correct answer. Exposure to future potential liabilities is a problem already solved by insurance.

Think about it this way, it's like malpractice insurance for doctors. So there should be malpractice insurance for states/courts - if a conviction is later overturned and the state is liable for the return of property, it gets paid out by insurance.


> In the rest of the dissent, Thomas discusses the due process that was available under Colorado's Exoneration Act and indicated that this law did not automatically entitle convicted persons to an automatic refund of any fees associated with their convictions, partially because state law ordered that money to be dispensed via victim compensation funds.

> This highlights a potential chilling effect of this ruling. As states are now on the perpetual hook for any monies that may be confiscated from someone who is eventually exonerated (and in the case of white-collar crime, this could be millions of dollars), and since you can't know that someone won't be exonerated in the future, states who are interested in keeping their budgets balanced will be incentivized to hold such money in escrow instead of dispensing it for victim's relief.

It seems that Thomas's dissent finds its basis in that the defendants should have followed the due process set forth in the Exoneration Act to have a substantive entitlement to the money, on the other hand in Alito's concurring opinion he quite explicitly disagrees and posits that the Exoneration Act violates due process:

These stringent requirements all but guarantee that most defendants whose convictions are reversed have no realis - tic opportunity to prove they are deserving of refunds. Colorado has abandoned historical procedures that were more generous to successful appellants and incorporated a court’s case-specific equitable judgment. Instead, Colorado has adopted a system that is harsh, inflexible, and pre- vents most defendants whose convictions are reversed from demonstrating entitlement to a refund. Indeed, the Colorado General Assembly made financial projections based on the assumption that only one person every five years would qualify for a financial award under the Exon- eration Act. Colorado Legislative Council Staff Fiscal Note, State and Local Revised Fiscal Impact, HB 13–1230, p. 2 (Apr. 22, 2013), online at http://leg.colorado.gov (as last visited Apr. 17, 2017). Accordingly, the Exoneration Act does not satisfy due process requirements. See Cooper v. Oklahoma , 517 U. S. 348, 356 (1996) (A state rule of criminal procedure may violate due process where “a rule significantly more favorable to the defendant has had a long and consistent application”).


It's almost as if Thomas is saying, "If we reject the CO SC's ruling (which is what SCOTUS did) then we must also say the Exoneration Act is invalid". Which I think makes sense, even though SCOTUS didn't go that far.

IANAL


He recently spoke out against civil asset forfeitures, so I wonder about the angle he took in his dissent. I'm trying to square that with this and think I just don't understand the laws to see the what it points to. I think there is a civil asset forfeiture case on the schedule, so I guess we will see then.


Justice Thomas is essentially arguing that the 14th Amendment (the "no depriving any person of life, liberty, or property, without due process of law" one) is the wrong reason to give the person a refund of their fees after an overturned conviction.

Reading the dissent, it basically says: when the person was convicted, they paid their fine, and at that point the fine money is now property of the state. The overturning of the original conviction doesn't, however, mean that the fine money also reverts ownership - he claims it is still in ownership by the state so the person cannot claim it is their property being deprived without due process under the 14th amendment.

He proposes that the "correct" way to get the money back is by invoking this other thing called "The Exoneration Act," NOT the 14th. The problem is the Exoneration Act isn't a law that says the state HAS to return funds, it's more of a specific appeal process for people to apply to get funds back. In other words, he recognizes there is no state law in Colorado that requires refunding these fees (nor does he offer a viable Federal one), but he claims there is a process available, at least.

In that sense, his dissent isn't really about him believing these people are NOT owed a refund in the moral sense of what is just, he's simply arguing that the court should not establish that refunds of costs/fines in cases where convictions are overturned is guaranteed by the 14th Amendment. It's kind of a pedantic dissent. And I still don't agree with him :)


Is the null process an available process? Why should anyone appreciate this kind of fatuous pedantry?


IANAL

The intent behind Thomas's particular brands of "fatuous pedantry" (more commonly called textualism or originalism) are preserving a maximum amount of power to the people through their representative governments.

If the people of Colorado did not see fit to provide such recourse to their exonerated ex-convicts, Thomas believes that the Constitution does not require them to do so. The Constitution merely requires equal protection under the law, and there is no law that is being applied unequally in this case; everyone is equally entitled to seek relief under the Colorado statute, which presumably represents the will of Coloradans as expressed through their state government. If Colorodans do not like this, they can enact change through their government.

When the Supreme Court acts and rules a law either valid or invalid, it's an unelected branch of the federal government imposing its will on the people. This is especially sensitive when the will is being imposed on the states. The Constitution was carefully designed to limit the reach of federal power and allow more authority to more local governments. Disputes over the extent of state's rights are no trivial matter -- they've caused our only civil war thus far.

Anyway, I've found that a great deal of judicial activity is based on highly technical issues that many would consider "fatuous pedantry". IMO it is totally reasonable to suggest a basic modernization/overhaul in our legal system. Until then, however, my experience is that "fatuous pedantry" and "law" go together so often they may as well be synonymous.


> IANAL

You're doing a thoroughly good job of playing one on HN. Thank you for a very informative analysis.


Thanks, I appreciate the kind words, and I'm glad that someone finds my take informative.

As a sibling commenter points out, it's easy to sound credible by throwing words around without really understanding the nuances. It's always nerve-wracking when someone may take you a little too seriously. I've learned I need to put two disclaimers on my "playing lawyer" posts because just one wasn't enough to avoid the ire of some people who I assume are real lawyers. ;)

And to be honest, if I were a real lawyer, I would still probably want to "IANAL" disclaim most of these speculative/navel-gazing posts anyway.


> And to be honest, if I were a real lawyer, I would still probably want to "IANAL" disclaim most of these speculative/navel-gazing posts anyway.

For that, I've seen the disclaimer "I am a lawyer, but I am not your lawyer."


IANTTE (That Type of Expert) - means, everything I say about the subject could be 100% incorrect and sound 100% accurate

:)


> dispensing it for victim's relief.

IANAL either but wouldn't the victim's relief come from a civil trial, not a criminal one?

I believe there are already processes in place that can be undertaken to delay payment on appeal. Why should criminal penalties be awarded, subject to immediate payment and then have to go through another court proceeding where the plaintiff has to prove their innocence again to get it back?


> IANAL either but wouldn't the victim's relief come from a civil trial, not a criminal one?

Many jurisdictions have victim compensation as part of criminal process, which makes some sense as an economy of justice measure, since the burden of proof against the defendant is higher in criminal trial than it would be at a civil trial (so, in principle, the defendant isn't losing any protection) and it prevents the victim from having to go through the whole process of civil litigation.



Can someone with legal experience interpret the dissent? I don't really understand the distinction he's making between "substantive entitlements" and "procedural due process".


The legal argument would be as follows:

1. The Defendant was charged with a crime and received his Constitutional due process (fair trial; lawyer; confront witnesses; remain silent; etc...)

2. Defendant was convicted and pursuant to that ordered to pay: court costs, fees and restitution (make the victims whole).

A. This is where it starts to get a little tricky...what if the defendant pays, but the conviction is later overturned?

3. The situation in A is accounted for through the Colorado Revised Statutes, specifically, the Exoneration Act. In short, the Act lays our the procedure for all refunds pursuant to A above.

4. Essentially it is this law/procedure that is being challenged for Constitutionality by the Defendants.

5. The majority of Justice's opined that upon the overturn of the conviction the defendant's are automatically entitled to their refund as a matter of law.

6. (5) above is what Thomas seems to take issue with: 1.) Colorado law doesn't provide for automatic return of funds upon overturning a conviction, in fact the law in question says the opposite, and 2.) The Colorado law doesn't violate due process (this is both an interesting and clever legal argument he lays out, see below)

Thomas' due process argument: Constitutional due process only applies when their is a Governmental deprivation of life, liberty or property. Here the defendant's received due process when their property was originally deprived. At that point moving forward, under the law, the Defendant lost his property rights and there is no State law that restores those property rights upon overturning the underlying conviction. What is really dramatic about Thomas' dissent, is that since the defendant has no property rights, the defendant isn't even entitled to any due process to reclaim the funds. In other words he believes the Colorado Exoneration Act is not only Constitutional but it goes above and beyond any legal requirements whereas the Defendant's don't even have a Constitutional Right to a process to reclaim property they lost rights - basically the Defendant's already have a due process and legally they aren't even entitled to that.


To be a bit playful, there is a sort of "Magic: the Gathering" version of this dissent, if it helps people.

So a Conviction is basically a type of enchantment which says you have 3 fewer life points and trouble getting a job. Now someone managed to cast Reverse Conviction, which exiles one conviction -- it's not even in the graveyard, as much as legally possible it's like it never happened, with the only exception being double-jeopardy laws etc. And the question is whether you get those life points back.

According to the majority opinion, having your life points converted into tokens on the State Government card was part of the ongoing enchantment, and so this ended when the enchantment ended: they should be converted back.

According to Clarence Thomas, it was an instant effect that happened when the enchantment was cast, and the ongoing effects were the other parts of the enchantment. So when it was cast, that was the time when you were "deprived" of your life points; it's not an "ongoing deprivation" but a single event which happened in time. You don't get them back unless another card in play says you do.

(A more full analogy would also include the fact that there is this Exoneration Act card which says "(3) Take a conviction token from the State Government and gain a life point. You may not do this if there is an enchantment which creates these tokens either on you or in the graveyard," and a house rule called Due Process which says that you cannot be deprived of life points without some card in the field of play saying so. )


Analogies are always good in law, I kind of got lost in yours but if you looked at my law text books you wouldn't find notes but pictures in my margins, likewise they may not help you but the process no doubt helped me flush out the ideas/concepts and remember the same.

Even running it thru my mind I do see the practical examples of distinguishing between the restoration of property and liberty when they have been deprived based on conviction and later overturned.

In fact I am sure I could provide examples where even people on here might agree the property should not be returned to the defendant after the overturned conviction. A lot of those examples would be where the defendant is actually guilty of the crime, but the conviction is over turned and the victim is forced to return restitution on top of seeing the defendant set free.

Nevertheless, in theory victims have another remedy in civil court at a lower standard than the beyond reasonable doubt of criminal court, but I could see that being traumatic to the victim in a lot of instance and likely so let down by the system they would never pursue it or if they did and won they may never be able to collect again.

It is very tricky no matter what the law is I'll find a set of facts that when applied results in an unjust outcome.


What I'm gathering at a really brief read of it (and without legal experience), is that Thomas is suggesting that if the money collected is no longer the individual's property, there's no Constitutional or legal obligation for the government to return it. So, like, evidence collected generally remains property of the owner, and people can recollect it, but if fines or fees are paid or assets are seized, it assigns the property rights of something to the state, it's no longer the individual's property and hence they have no right to get it back... even if they were found innocent later of a court case.

EDIT: cookiecaper's read on it is probably better than mine, go read that.


Not sure why you were down voted, that is basically the entire second part of Thomas' legal dissent.

1. Colorado law doesn't provide for an automatic refund when convictions are overturned, rather Colorado law provides a process and the defendant's didn't attempt to use the process (Therefore, no Constitutional violation in application of this law);

2. The Defendants here already lost their property rights, and so the Due Process Clause of the Constitution does not apply (Colorado doesn't need to provide any process to refund, so we don't need to even look at the Colorado Law to determine if the process is Unconstitutional).


I try not to read too much into why I got a downvote anymore. Maybe it's because people disagree with Thomas' opinion. Maybe it's because they think I read it poorly or said something technically incorrect (which is likely). For all I know, they saw an earlier comment of mine, disagreed, but couldn't downvote it and came and downvoted my most recent comment instead. Who knows, it happens. People on the Internet are baffling.


Well, 1 is pendant on 2. If 2 is invalid then 1 is also irrelevant. It is really hard to argue that the defendants have lost their property rights or that a contractually legal property transfer occurred. It was "seized" after all.


I am making a hypothetical, but say:

1. You break into my house and steal my iPad and it's not covered by insurance;

2. You are convicted based on your own confession and as part of the sentence you are ordered to pay court costs and restitution (replace my iPad);

3. This is where it begins to get tricky:

a. You might pay the court in cash and with a check at sentencing;

b. Maybe upon your arrest you posted bail to be released, this could be a 100% cash bail held by the Court/sheriff/etc (based on local rule) and upon the sentence they deduct the court cost automatically and return the rest (not exactly a seizure) I don't think the can withhold the restitution (iPad amount) so I would still have to try to get that from you, which you may or may not pay

c. This is not an exhaustive list of possibilities you might pay 10% to a bondsman and he posts with the court and they won't deduct costs from them; you might never post bond because the judge let you out ROR or maybe didn't allow bail (unlikely); and like in this case their case there was some jail account; etc...

4. Trickier still is if you elect to pay me, then appeal and conviction is overturned because the confession was given after you asked for your lawyer and should have been suppressed;

5. The state law says because you were convicted and paid me and the court you must now prove you are innocent to get your money back, you claim that is unconstitutional and the court:

the majority says: you are right that is unconstitutional and you should get your money back without having to prove you were innocent

Thomas says: under such a situation the constitution is quite and so the state is allowed, but doesn't have to, make a law on point, which they did in this case. in truth I'm not sure if he took the step to see if the law on its face or as applied is constitutional because the defendants never attempted to use the process


If the seizure was legally conducted based on the law, then ownership of the property in question arguably has been transferred. Obviously asset seizure in itself is not illegal. And so Thomas' argument hinges on the concept that since it's no longer their property, they have no Constitutional rights regarding it's return.

I don't think it's a wholly invalid point, even if the result is terrible. And obviously the rest of the court decided to lean in favor of the common man, which I think is a general good.


Well, the state has to release their bodies upon the overturning of their conviction. If the point is not wholly invalid then can the state also continue to hold their bodies until they sue through some body restitution law -- habeas corpus? Clearly not.


Liberty and property are clearly different in practice.

Say you were arrested for holding me up at gun point and robbing me of $100, you are arrested and convicted and ordered to pay me back the $100 which you did. On appeal the conviction is overturned because of some technicality. even though you actually did rob me, there is no question your liberty will be restored (set free), but the question is should property be lumped right into that fold and I be ordered to give you back the $100?

7-1 the Justice's believe a law requiring you to prove you were innocent in order to get the money is unconstitutional. Thomas the lone dissent thinks once you give me the $100 that $100 is no longer yours so due process doesn't apply and the state was free to pass their own law to provide a process for these instances.


Very briefly:

* Procedural law is the body of law around how a case is heard and handled: how to petition a court, how cases are adjudicated, jurisdiction (i.e. does the Court have the authority to handle this case), etc.

* Substantive law is basically everything else. Rights, remedies, criminal law, civil law, administrative law, etc.


I think we all knew this was the answer before reading a single thing about the case


It doesn't sound like he supports forfeiture in general. According to the article "And Justice Clarence Thomas (the lone dissenter in the Nelson decision) recently slammed civil forfeiture for its “egregious and well-chronicled abuses.”"


Yeah, but he has a history of dumb contrarian lone dissents that throw some poor citizen under the bus.

Generally when the question "who the heck dissented on that?!?!" is asked, the answer is Thomas.


> Yeah, but he has a history of dumb contrarian lone dissents that throw some poor citizen under the bus.

That's because he interprets the Constitution and the law according to what he believes them to mean, not according to what he wishes they would mean.

In this case, he clearly states that he sees no constitutional requirement for the State to return property after it has been confiscated post-conviction (as an aside, the article title is misleading: this wasn't confiscation prior to or absent a conviction). The Constitution does not mandate all good things, nor does it forbid all bad things.


Well, that's your opinion, and Thomas's, but very frequently it's not the opinion of 8 other Supreme Court justices, several of whom also claim to be textual originalists.

The constitution does not mandate all good things, does not forbid all bad things, but VERY NOTABLY includes the 9th amendment. They put that one in for a reason.


The article links to the decision at the SCOTUS site. Thomas dissented.

> GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER , SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion. GORSUCH, J., took no part in the consideration or decision of the cases.

Gorsuch is from Colorado, and so might have had a conflict.


Gorsuch wasn't on the court when this was argued either.


I don't think just being from the state a case originated in is commonly, or ever, seen as necessitating self-recusal; after all most judges are residents of the states they adjudicate in.

Pretty sure Gorsuch just wasn't yet seated on the court when the case was being heard.


The article does a piss-poor job of actually framing the issue that was decided: http://www.scotusblog.com/case-files/cases/nelson-v-colorado. In particular, the article's characterization of the question presented is so hand-wavy that it makes the dissent seem incomprehensible.

To understand Thomas's logic, start with Section I of the dissent: https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf. Thomas is not saying that the state should be able to "keep money from the innocent." Thomas's reasoning is roughly the following:

1) The 14th amendment requires the government to give you adequate process before depriving you of a property right.

2) At the time petitioner was convicted, he paid over a sum of money to the state. He lost the property right in that money, and the state gained the property right in that money.

3) After the conviction was overturned on appeal, the state required petitioner to go through a process to get his money back. Petitioner alleges that the process was inadequate under the 14th amendment.

4) To make a 14th amendment deprivation claim, you have to show deprivation of a property right. At the time petitioner sought his money back, he had no property right. That transferred to the state under step (2).

5) Thomas asks: where is the property right that is the basis for the 14th amendment claim? It can't come from the 14th amendment itself, because that only comes into play once petitioner has a property right.

To get around (5), you can theorize that the initial payment automagically become null-and-void when the conviction was vacated. But that would be an unusual result, because legal judgments don't ordinarily have that kind of effect. Say you buy some property, then sue the seller and get a judgment saying you overpaid. You can assert that judgment against the seller to collect, but at most the judgment means the seller owes you money back, it does not automatically transfer the property right in some of the money you paid back to you.

I think the majority is right in that the overall effect of the Colorado law would be a due process violation. But the majority's reasoning kind of requires thinking of the whole process as a black box and not thinking too hard about what happens inside.


>4) To make a 14th amendment deprivation claim, you have to show deprivation of a property right. At the time petitioner sought his money back, he had no property right.

yes, because he was deprived of that property right. Vacated conviction doesn't seem to satisfy "adequate process" requirements for the deprivation.

The logic of Thomas's dissent is like accepting the argument in, say for example, physical assault case that the person didn't objected to a beating because his mouth was duct-taped shut.

>You can assert that judgment against the seller to collect, but at most the judgment means the seller owes you money back, it does not automatically transfer the property right in some of the money you paid back to you.

seems you've never tried to collect on a judgement. Once you get the judgement against other party, you identify the property of that other party, say bank account or a real estate, and get a court order for the sheriff to withdraw from the account identified or an order for the county to put a lien on identified real estate of the other party. Such orders are basically orders for the transfer of the property right.


Thanks for explaining this. In my laypersons opinion I think this outcome is the just one, although I appreciate the dissent as a logical argument. Does something similar to the UK rules of statutory interpretation exist in US law with respect to the US Constitution to prevent absurd outcomes? like the dissenting outcome (IMO) would have been?


Asking because I don't understand:

What's the difference between the seller owing me money back and me having a property right in that money? They seem similar to my not-at-all-a-lawyer intuition, what am I missing?


The former is a debt you have the right to collect from the seller. The latter is actual ownership of the money. E.g. if you're behind on your cell phone bill, you owe the company money, but they don't automatically have a property right in your bank account.


Great explanation, but I'm unclear why it's so bizarrely automagical to expect a government to return money when it finds out it unjustly took it.


I don't understand this:

> Ali had previously sold the Chevy but still held title to it and it was registered in his name ..... In order to regain his Chevy, Ali was asked to prove his innocence.

Why does he need to regain "his" Chevy? It said he sold it, so it's not his anymore. Just the title transfer was not registered yet (which in my state is pretty common, especially for junk cars, since the state charges a fee and sales tax to record the transfer).


If you look up the actual case, the buyer was still making payments on the car, which is why Ali still held the title.


In certain states, the title proves the transfer (sale) of the vehicle.

I didn't read the whole article, the paywall is blocking it but if there is no legal document to prove the sale has taken place, then the car still belongs to the name on the title, regardless of what happened. In other words, it doesn't matter if he got paid 10K for the car, if the purchaser don't have any documents, he is SOL.


Well, yes and no. The purchaser would certainly have a civil claim against him for breach of contract.

I'm not sure how Ali even got involved in this, other than a chance to fuck someone over who had little recourse.


> if the purchaser don't have any documents

But it's not the purchaser who is suing - it's the original owner, who already got paid.

So why is he suing to get paid again, or get a car back that's not actually his?


A little more of an educated take from a couple weeks ago:

http://www.scotusblog.com/2017/04/opinion-analysis-states-ca...


This is a huge step forwards. I only hope asset forfiture is next.


I was unhappy about this:

"In Congress, the FAIR Act by Sen. Rand Paul and the DUE PROCESS Act by Rep. Jim Sensenbrenner would both reform federal forfeiture laws so that property owners are innocent until proven guilty. "

An act of congress should not be required to regain constitutional rights. I would much prefer SCOTUS take one of the cases and slap them down at that level to set the highest precedent.


I'm not a lawyer, that byline seems to be misleading. Property owners ARE innocent until proven guilty. In civil asset forfeiture the PROPERTY is charged with a crime, not the owner.

Which is the ridiculous part. You shouldn't be able to charge property with a crime if you can locate the owner.


Yes, that's called in rem jurisdiction (power over objects) and the resulting cases can sound very comical

United States v. Approximately 64,695 Pounds of Shark Fins

United States v. Forty Barrels and Twenty Kegs of Coca-Cola

United States v. Ninety-Five Barrels, More or Less, Alleged Apple Cider Vinegar

One 1958 Plymouth Sedan v. Pennsylvania

United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness

Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri

United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls

United States v. One Lucite Ball Containing Lunar Material (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque


> that's called in rem jurisdiction (power over objects)

Where did "power over objects" come from? Going strictly by the Latin, in rem means "into the thing" ("into" here marks that the thing is being attacked). "Thing" and "object" are basically synonymous, sure, but power is not mentioned at all.


In Rem = against a thing/object - https://www.law.cornell.edu/wex/in_rem

Jurisdiction = Power [of a court] - https://www.law.cornell.edu/wex/jurisdiction

"The term jurisdiction is really synonymous with the word "power"."


How does a 1958 Plymouth Sedan go about hiring a lawyer for representation? Along with standing, rights, representation....


My understanding is that suing in rem began with ships, since they are quite valuable and movable at the same time. Thus, ships can be sued and arrested to prevent the asset from being removed from the jurisdiction. It has been expanded considerably since those simpler times, mostly I think to benefit the coffers of government agencies that could not convince legislators to provide them with bigger budgets.


>> I'm not a lawyer, that byline seems to be misleading. Property owners ARE innocent until proven guilty. In civil asset forfeiture the PROPERTY is charged with a crime, not the owner.

When the property is seized from the owner and sold at auction I don't think the property has been punished in any way, but the owner has been subject to seizure of property without cause. We agree, it's absurd.


Agreed; I actually thought asset forfeiture would be the subject of this article until I read it. Perhaps that's because I know that asset forfeiture is ongoing and never thought something like Colorado's "Exoneration Act" could ever exist.


From another article[1]: With this ruling the Nelson decision may set an important precedent to rain in another abusive civil proceeding called civil forfeiture. The parallels are striking. Through civil forfeiture, law enforcement can confiscate and keep cash, cars in real estate without securing a criminal conviction or filing charges against the owner. Perversely under civil forfeiture, even those not found guilty in criminal court can still forfeit their property in civil court, since the latter has a lower standard of proof.

So hopefully they are correct and we'll see a reexamination of asset forfeiture sooner than later.

[1] https://dawgonnit.com/2017/05/02/supreme-court-rejects-guilt...


I'm confused as to why it hasn't yet. There have been complaints about civil asset forfeiture since like the '90s? How has a case not been challenged and gone to the Supreme Court yet? Or has it gone already, and been upheld? I honestly don't understand how civil asset forfeiture can be constitutional, and I'd like to hear someone give any kind of argument otherwise.


It's tough because the legal theory is established and sound depending on your point of view. It arises from maritime law around contraband and ships.

The problem is that the scope of how it's implemented today is much larger and more impactful. The result is that we have policy at the Federal level that effectively criminalizes cash. Because the legal foundation is sound, it is difficult for the courts to act -- we really need changes in law. That's why law originates from the Congress... to check the executive.



I don't know if I'd characterize it as a 'huge step'. I don't want to be negative but I think there are risks to clinging to this modicum of good news while the House is crumbling around us.


Agreed. Far too many reports of abuse of civil forfeiture.


It was a 7:1 vote. Is there a resource to look up how individual judges voted?


oyez.org will have the votes. Justice Thomas dissented and Justice Alito concurred in the result but not in the argument.

https://supreme.justia.com/cases/federal/us/581/15-1256/ is the opinion, https://www.oyez.org/cases/2016/15-1256 has recorded oral argument, opinions and summaries. Good reddit thread https://www.reddit.com/r/law/comments/690jb0/scotus_rules_71... with a biased title but good discussion.


I'm kind of stupid about the SCOTUS, what does it mean that "Alito concurred in the result but not in the argument?"

Edit: Thank you for the explanations, especially the fact that they aren't strict yes-no votes (that makes a ton of sense now).


He thinks that the majority reached the right conclusion (the result - that the defendants were entitled to the money) but not for the right reason (the particular argument that the majority opinion made)


SCOTUS rulings are not yes-no votes. There are any number of opinions written and justices who took part in the case (usually all of them) will sign on to one of these opinions, while sometimes noting that they largely agree with another one. I didn't look up this particular case but usually that sentence means that there were at least two opinions written: one agreed by a plurality, one by Alito, and zero or more additional opinions (at least one if there were any dissents). It means that Alito's opinion amounted to the same yes-no answer(s) as the majority but he was unwilling to say he agreed with their actual written opinion.


Thank you for this explanation, that makes a lot of sense.

A priori civil forfeiture goes against this countries values but the legal logic in the majority opinion seems like it has some problematic aspects which is why Thomas dissented and Alito agreed but with stipulations.


"I agree with the decision, but I came to my decision via different logic."


It means he agrees that the money should be returned, but not for the same reasons that the other justices gave. So he'll have his own section in the judgement explaining his own reasoning.


SCOTUS rulings are somewhat more complicated than yes-no votes. There can be any number of opinions written, and every Justice involved with the case will essentially sign on to one of these opinions (while possibly noting that they largely agree with another opinion and just have more to say).


Most significantly, the precedential value of rulings is in the reasoning rather than the result (now, this is still a clear majority without Alito, but there are cases where there is a majority for the result but no majority for a rationale, which then have little precedential effect, because there is no reasoning you can point to as the "rule" by which the case was decided.)


It was in the pdf linked from the article.


Sarah Stillman wrote up civil forfeiture in The New Yorker in the summer of 2013. John Oliver's TV piece on the topic must have drawn heavily from this article.

http://www.newyorker.com/magazine/2013/08/12/taken


> Ali had previously sold the Chevy but still held title to it and it was registered in his name. When the buyer was arrested for a DWI and drug possession, police seized the truck and filed a civil forfeiture action against it, even though Ali was not involved. In order to regain his Chevy, Ali was asked to prove his innocence.

If Ali sold the car but kept the title what the heck did he "sell"? This sounds like a poor defense against civil forfeiture. It seems like he'd have to claim he cheated the person he sold the car in order to assert ownership. I wouldn't want to touch that case either.


What surprises me is - even for just 1 vote against - it was not a unanimous decision.


It would surprise me, if the dissenter wasn't Thomas.


Does this mean police can't legally steal your money anymore?


It may have implications for civil forfeiture practices. But the case was about when the state holds onto restitution money even after a conviction is overturned. So it probably won't change civil forfeiture practice in the near term.


Right, and forfeiture doesn't always involve a guilty conviction. Say a kid uses his mom's car to commit a crime. He could have taken it without her permission (stolen it) and now it becomes part of the crime. There was a real case posted on HN a few months back like this.

Now if someone had property taken and was later found innocent, would this immediately release the property taken in that particular forfeiture without a 2nd civil court case?


Wonder if Kim Dot Com's legal team would be able to make use of this in their ongoing US legal saga?


He would have to be extradited (they're still trying to fight that in NZ), be put on trial, and then win. Even then, this seems to only cover the legal fees. He'd still have to sue the State for the loss of all the servers, taken from him in a country he had never set foot in.




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