This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA). The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime: Three had their cars seized; three had cash taken. None of the six was served with a warrant, none of the six was charged with the crime. All perfectly legal, at least until now.

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year.

Civil asset forfeiture is a particularly odious outgrowth of the drug war. While few would argue that criminals ought to be able to keep the proceeds of their crimes, civil forfeiture allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Hence, forfeiture cases tend to have names like U.S. v. Eight Thousand Eight Hundred and Fifty Dollars, or U.S. v. One 1987 Jeep Wrangler. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, giving them a clear and unmistakable incentive to seize as much property as often as possible.

Fittingly, the Supreme Court is hearing arguments in Alvarez on the 25th anniversary of the Comprehensive Crime Control Act of 1984, the federal legislation that gave us the modern abomination that is drug forfeiture. That law made it easier for federal prosecutors to seize the assets of drug suspects, regardless of whether they were ever charged with a crime. It allowed the government to use hearsay evidence in forfeiture proceedings, and required a showing of only probable cause that the property was tied to a drug crime in order for the government to keep it. That meant, for example, that federal agents could testify to something an informant had told them even if the informant was unavailable to the defense for cross examination.

After a series of particularly outrageous forfeiture cases made national headlines throughout the 1990s, the late Rep. Henry Hyde, R-Ill., was able to push through some reforms in 2000. The Civil Asset Forfeiture Reform Act (CAFRA) bumped the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay and provided for defendants who won in court to be compensated for attorney's fees.

But the CAFRA reforms applied only to federal law, not to the states, and after 1984 many states passed forfeiture bills similar to the new federal law (Mississippi updated its forfeiture law 41-29-176 in 2001). Illinois' law is one of the worst in the country. DAFPA still allows the state to use hearsay evidence, for example, and still sets the state's evidentiary burden at probable cause. Conversely, if property owners want to use the "innocent owner" defense, they can't use hearsay, and their burden is the higher "preponderance of the evidence" standard. Property owners must post a bond on the seized property just to get a hearing, which again can take up to six months. And even if they prevail in court, they still forfeit 10 percent of the bond. The government isn't required to reimburse them for attorney's fees, court costs or interest, nor is the state liable for any loss of time or income caused by the pilfered property.

The Supreme Court will likely rule only on the provision of the Illinois law that allows the government to hold property for six months before an owner gets his first day in court. The U.S. Court of Appeals for the 7th Circuit struck down that particular portion of the law, though its opinion indicated only that expected property owners be given notice of the seizure and that they be given at least a bare-bones hearing. The opinion amounted to a light rebuke of one portion of an unconscionable law.

Even here, there's cause for pessimism. Generally, the U.S. Supreme Court takes up cases where there's either disagreement between federal districts (that isn't the case here) or where a significant number of justices have problems with the appellate court's decision. It's possible that the Court agreed to an appeal of the 7th Circuit ruling to affirm it, but it isn't likely.

In sum, we have a law that allows the state to seize someone's car without a warrant on the grounds that the car may have been connected to drug activity. Even if he's innocent, the car's owner may have to wait six months before he's even granted a hearing, and more than a year before the state returns his property. Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be. As George Mason University law professor Ilya Somin wrote on The Volokh Conspiracy Web site earlier this year, "The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence."

Unfortunately, the best outcome from Alvarez is likely to be little more than a requirement that states grant a bare-bones hearing in forfeiture cases within a reasonable amount of time—a marginal improvement. At worst, the Court will uphold the state's power to hold seized property essentially indefinitely, and other states will see yet another odious opportunity.

Link!


Drug Warriors Want Your Assets
Radley Balko
Jackson Free Press
9.15.09
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Ugh.
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I think the alignment of votes will surprise people. Legally speaking, the controversy is not over the justification of extreme anti-drug tactics but over the limits of due process as it relates to property rights. Framed that way, we may actually see the conservative justices vote against DAFPA in order to protect property rights more broadly, especially as they relate to issues of eminent domain. The "liberal" justices, on the other hand, aren't nearly as attached to property rights and may vote in favor of the policy in order to protect government intervention in the marketplace.

I don't know if anyone remembers, but a few years back the Supreme Court ruled in favor of the DEA's right to arrest medical marijuana growers in California. In that case Breyer, Ginsberg and the other liberals voted in favor of the DEA while Scalia and the usual enemies of civil liberties voted against it. For them it was an issue of federalism, in fact all of the justices agreed that the criminal status of marijuana was and is idiotic.

As always, it's probably gonna come down to Kennedy. Let's hope he recognizes the insanity of letting this go on any longer.
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double ugh. this shit is lame.
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pathetic that such actions have gone unchallenge for 25 years....
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my car was just seized for this same bullshit...my lawyer said its another case and wants more money.

im not sure if im even going to bother for the fact the car isnt that valuable (under 5k)

fucked up part is im most likely gonna have the case dropped against me but the car is still gone.
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gotta stifle the ego and drive/own/live in junk until yer outta the business... :-)
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i know im lookin for a beater right now
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The fact that this shit is common practice in Chicago makes me want to vomit. Danger comes not from drugs but from the state and that is scary as people here are not treated as individuals but as means to an end...which seems not much different than 3rd world countries.
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This shit is regoddamndiculous. This furthers my theory that America's war on drugs is about predation and taxation against a group that the general public has little sympathy for, rather than about public health or public safety.

When I asked my sister in law if she'd be willing to let me grow a couple plants at her house, she objected strongly, saying that if busted, the police would seize their house as an alleged 'drug factory', leaving them homeless. At first I thought this was my sister in law being her usual jumpy, paranoid self. Then I did a little research, and found that her fears were hardly unfounded, and the situation she presented QUITE precedented.
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disgusting. the middle americans who support this are one of the most toxic cultures on earth. they are destroying the planet faster than any group in history imo.
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QFT.

Most of these people are unabashed moralists with an inflated sense of self-importance, who are incapable of realizing the hell they are unleashing upon this planet.
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interesting. but what if they vote for it on the long-standing assumption that all drug users are scum?
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No need the single out Americans, the "moral majority" in all countries are pretty toxic. The only reason the "fringes" of society even exist is they were kicked out of the middle basically.
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Whatever happened to innocent until proven guilty? These laws are fucking disgusting and I hope they are reformed! I can't believe someone doesn't even need to be convicted of the crime for their property to be taken off them for committing it?

On what planet does that make sense? The United States of Oppression and Absurdity it seems.
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The Fifth Amendment says that no one shall be "deprived of life, liberty or property without due process of law".

Do any politicians or judges remember their oath to support and defend the Constitution? Apparently not.
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bleh. the only reason why these different laws are bent around and reshaped are because they're drug cases they pertain to. most americans look at drugs as life destroying monsters. most are, actually, but thats beyond the point.
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The constitution only applies to REAL americans, not scum like drug addicts.. and terrorists.. and child molestors.. and you know what fuck it "its just a goddamned piece of paper anyway!" <When a US president can get away with saying that you know the country is lost.
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"Innocent Until Proven Guilty" is a shit phrase anyways, it presumes guilt.

Should be Innocent Unless Proven Guilty"
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More of legalized theft. There's no dif between this and the mob shaking somebody down and taking all their stuff. It's a way for pd to make money and always has been. There aren't any morals involved and they certainly don't count when dollar signs are thrown up. I trust my reps about as far as I can throw a piece of cellophane.
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Except it's fairly well accepted that not everyone will be proven guilty, so it doesn't make a whole lot of difference. I do see your point though. :-)
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Doesn't surprise me at all
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Really wouldnt have expected otherwise I guess.

Shitty as hell but it happens =/
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my car has also been seized by Illinois... :-)
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Goddamnit I am so fucking pissed, this shit has just actually happened to me, and yes I live in Illinois.

My car has been seized, and it is not a cheap car, I'm gonna get a lawyer and fight the shit out of this. It pisses me off enough to read about these injustices but when it actually happens in real life its a whole different type of resentment it puts in you.

Oh and also, I haven't been charged with a single crime throughout all this. I really am fully innocent and have no criminal charges at all, and I was shocked to actually find out that they really can do this, I never would've thought they would have the right to do this. I mean they do a lot of fucked up shit but this tops it.

I actually came on this site tonight to see if I can gather any information on this exact topic, and I see it splat on the front page of bluelight. Amazing that two other people also seem to be suffering the same thing as me on this thread. What the fuck is this? has the chicago area been doing some sort of crackdown lately?

Or maybe they're police departments are running low on cash so they're taking the dishonorable route to raise funds. :-)

I don't deserve any of this shit, had no drugs on me at all.

It's definitely good to get the word out for this on the site, also check out the following website:

http://www.fear.org
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