Kevin Williamson nailed the truth in his recent essay — civil asset-forfeiture laws are indeed the death of due process. Justice Thomas sees that clearly and perhaps a majority will be persuaded the next time a case involving those laws reaches the Supreme Court.
However, the widespread opposition to allowing police to seize an innocent person’s property simply on suspicion that it was somehow involved in or resulted from a crime is having an impact at the state level. In Colorado, Connecticut, and Illinois, bills have either been signed or have reached the governor’s desk that make their laws less amenable to abuse by police who want to engage in some legal plunder. And in Pennsylvania, the state Supreme Court has ruled in an ugly case (a 72-year-old woman was going to lose her house because her son sold some drugs in it) that the Eighth Amendment’s prohibition against excessive fines applies to such forfeitures. That decision will cut into the profitability of civil asset forfeiture.
I discuss those advances in my latest Forbes article.
Sadly, Congress is sitting on its hands. A bill that would defang this viper as practiced by the federal government, the Fifth Amendment Integrity Restoration Act, is stuck in its respective Senate and House committees. Yes, Congress is busy, but in the past there has been heavy support from Democrats and Republicans for the legislation. Getting the FAIR Act passed shouldn’t be terribly hard. Months ago, President Trump (after meeting with some sheriffs in Texas) indicated his opposition to reforming civil asset forfeiture, but it might be possible to get him to see that signing a reform bill into law would be most popular in lower-income and minority communities. If he wants to increase his support there, that would be a good move. In any case, repairing the damage civil asset forfeiture does to due process of law should need no political calculus.