Comments on: “South Carolina Judge Declares Civil Forfeiture Unconstitutional”

By: Canvasback

Canvasback — Tue, 05 Nov 2019 15:20:16 +0000

@ Matt,
The possible fine was $50,000. The forfeiture was $20,771. In Austin v. U.S., 1993, Justice Antonin Scalia concurred in part and concurred in the judgment, writing that the proper question for determining whether the forfeiture is excessive is whether the property had a close enough relationship to the offense, rather than how much the property is worth. (Oyez)
And the property seemed to have a close relationship to Green’s cocaine business.

But still, I think Mathews/Nelson is an inapplicable test. The second prong asks about “the risk of erroneous deprivation of that interest
through the procedures used;” Mathews and Nelson beat the charges. Green was guilty. I see no place in the decision where Judge Johns cared either way.

By: MattS

MattS — Tue, 05 Nov 2019 12:15:49 +0000

“And, as the prosecution notes in their appeal, after the conviction, no fine was imposed.”

Which is totally irrelevant to the issue of whether the asset forfeiture standing by itself amounts to an excessive fine in violation of 8A.

By: Canvasback

Canvasback — Mon, 04 Nov 2019 17:35:05 +0000

About damn time. But indulge me my ignorance. Here’s the Nelson/Mathews test Judge Johns uses:

“The three considerations balanced under Mathews—the private interest affected; the risk of erroneous deprivation of that interest through the procedures used; and the governmental interest at stake—weigh decisively against Colorado’s scheme. ”

That applied in a case where the convictions were reversed, acquitted, or vacated. In this case, Green pleaded guilty, got a 15 year sentence, and the prosecution seized his working capital and other tools and business inventory. And, as the prosecution notes in their appeal, after the conviction, no fine was imposed.

While I agree with the judge wholeheartedly on forfeiture abuses, he’s looking like an activist here.

By: Ras

Ras — Mon, 04 Nov 2019 04:39:49 +0000

15 pages to say that those presumed innocent may not be punished. I would have thought it should be obvious, but I guess I shouldn’t complain; at least they got it right.

By: cc

cc — Sun, 03 Nov 2019 20:51:30 +0000

This seems so obvious that I have long been offended that civil asset forfeiture continues. The original idea was if you catch smugglers with a boat full of coke, you seize the boat, but rarely is it that obvious. Most of the time it is poor people carrying cash and a small amount of drugs and they seize the cash and car. It is gangster government, pure and simple.