There are not a lot of civil asset forfeiture fans left. While police chiefs still swear they cannot fight the war on drugs without cleaning out citizens’ pockets, the rest of us aren’t so sure. Somewhere between the margarita machines and outright theft, people have lost their taste for civil asset forfeiture.


But all the articles in the world aren’t going to change much as long as judges rubber stamp this legalized theft. In a recent pleasant surprise, the Supreme Court of South Carolina expressed some doubt over the process in a hotly contested oral argument in a case that challenges the constitutionality of South Carolina’s civil forfeiture statutes.


Back in January, the South Carolina Supreme Court heard oral argument in Jimmy A. Richardson, II v. $20,771.00 in U.S. Currency and Travis Green. Abuses like civil forfeiture do not stand on their own. They require a passive judiciary. Judges who accept anything a cop or a prosecutor says without question are as much a problem as anything else in the legal system.


So, it was interesting to hear the Supreme Court question a prosecutor and express doubts about this favorite tool in the War on Drugs.


The challenge arose from an Horry County case where a circuit judge decided the forfeiture statute was unconstitutional. The short version of the issue is that the Supreme Court is considering a “facial challenge” to South Carolina’s forfeiture statutes. In other words, the statute is unconstitutional in all situations, as opposed to just being unconstitutional when applied in certain cases.


Facial challenges are very difficult to win, but the appropriate challenge here. Civil forfeiture has become so unwieldy it needs to be reset, not “fixed” in the piecemeal fashion the as-applied challenge would allow.


Chief Justice Beatty was the most visibly doubtful about the forfeiture scheme. His doubts are well-founded. In South Carolina, police make a probable cause determination that an asset is linked to a crime. Probable cause is the lowest standard in the law. A police officer can have probable cause even if it is unlikely a crime was committed. Imagine the limits that standard sets…


Once police determine there is probable cause, they take the property. At that point, the property owner is completely at the mercy of the State. The deadline for filing a forfeiture action is within a “reasonable” time. What reasonable means is anyone’s guess. And it definitely means something different depending on whether you are the fox or the hen State or the defendant.


Once that reasonable time passes and the State files its action, the judge is simply deciding whether to confirm law enforcement’s decision on probable cause. Imagine how that works for the accused…about the same as it works in any other proceeding. Not too well.


South Carolina civil forfeiture statutes are essentially a big disguise to allow police to take whatever they want. Because they get to keep 75% of what they take, there is a huge incentive to engage in profiteering. To date, there has not been much to stop them.


Prosecutors and police department lawyers are charged with deciding whether forfeiture actions should be filed. In other words, they decide if the police, who they work with every day, made the right judgment call. If you have ever sat in court and watched a prosecutor cover for a police officer telling a lie version of events clearly inconsistent with reality you can guess how that is going to work out.


The next layer of defense is a judge. But again, judges by default seem to take the side of law enforcement. And they are highly unlikely to go against the same officers whose stories they regularly accept without question, no matter how improbable.


Under these circumstances, civil forfeiture has become a license to steal. During the oral argument, the State presented several ways a citizen could be protected from a wrongful forfeiture. All of them fell flat.


The first idea, unsurprisingly, was that the prosecutor was an inherent protection against forfeiture abuse. This assumes a prosecutor would be willing to tell a police officer he is incorrect. As we know, that is unlikely to happen.


The State also argued a forfeiture victim defendant could file his or her own action. The Supreme Court quickly pointed out that was not allowed under the statute, so any rights a potential forfeiture defendant had flowed from the State’s action.


The statute does allow for an “innocent owner” to apply to the Court for return of seized property, but it is not clear who that applies to. If you have been arrested, you are presumed innocent, but not really. For the citizen who had both his liberty and his property taken by the State, this provision offers little protection.


Keep in mind that none of this is dependent on the outcome of the criminal case. Forfeitures can be filed and resolved before a citizen ever steps foot in a criminal court. This creates tremendous leverage in cases involving both criminal prosecution and civil forfeiture.


By the end of the argument, the Supreme Court had gotten to the practical heart of this matter. Justice Beatty wanted to know if there were consent forfeiture agreements signed in cases where the prosecution was then ended, suggesting the State was using its power to take property as opposed to fight crime.


In response, the State’s lawyer said he did not know what happened to the criminal side of his cases after the forfeiture was resolved.


Justice Beatty’s response was telling: “I don’t believe you.”


It is unexpected to see a judge question the State. But it is also the only way we will make any progress in combatting abuses of power by those in power. Some other entity in power is going to have to step up. Since citizens unfortunately don’t fall into any of those categories, we rely on judges. And there is some hope they may do the right thing here.


The case is still pending. Stay tuned for a decision and let’s hope the Supreme Court will take some action to back up its words in this case.