Common High Court Ground

The Supreme Court is looking for cases to curb abusive law enforcement seizures.

The United States Supreme Court building on March 20 in Washington, D.C.

Zach Gibson/Getty Images

It’s been a rough year for the Supreme Court. While the court tried to avoid controversial cases and to reach consensus whenever possible, the Republican Senate blockade of Merrick Garland and the tense process around Neil Gorsuch’s confirmation made it look more partisan than any time since Bush v. Gore. Fortunately, though, the court appears to have found a new issue on which to find common ground and attempt to rebuild public confidence: curbing civil forfeiture abuses and other property seizures by police. That may not sound like the sexiest topic, but it’s one that is at the heart of one of the most controversial areas of law enforcement.

Last week, in a case called Nelson v. Colorado, the court laid a foundation for upcoming challenges to roll back law enforcement overreach. As a result of respective 2005 and 2006 convictions, Louis Alonzo Maddon and Shannon Nelson were required to pay a few thousand dollars in court costs, fees, and restitution to Colorado (on top of serving prison time). But Nelson and Maddon ultimately had those respective convictions invalidated. They both then asked for refunds on those paid costs. But the Colorado Supreme Court held that to obtain refunds, a state law called the Exoneration Act required them first to file separate civil court proceedings—where they would have to pay for their own lawyer or find one to represent them for free—and prove “by clear and convincing evidence” that they were “actually innocent.” The “actual innocence” standard would force them to bear the enormous burden of proving a negative, to demonstrate “by clear and convincing evidence” that they had not committed the crimes in question.

A succinct majority opinion by Justice Ruth Bader Ginsburg—joined by Chief Justice John Roberts, and Justices Kennedy, Breyer, Sotomayor, and Kagan—reversed the Colorado Supreme Court, holding that Colorado’s demanding scheme for refunding money to exonerated defendants violated the Due Process Clause of the 14th Amendment. (Justice Alito wrote a separate concurring opinion, while Justice Thomas dissented.) Ginsburg wrote: “once their convictions were erased, the presumption of innocence was restored. … Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” This makes sense to anyone who’s ever seen an episode of Law & Order and thus knows that a criminal defendant is presumed innocent until proven guilty. It follows that if a conviction is invalidated, the defendant hasn’t been proven guilty and he or she is once again presumed innocent.

The presumption of innocence means that a defendant who can’t prove her “actual innocence” isn’t any less innocent than one who can. No matter how egregious or benign the reversible error may seem, as Ginsburg writes, “reversal is reversal [a]nd an invalid conviction is no conviction at all.” The Due Process Clause, thus, prohibits states from making defendants go through “anything more than minimal procedures” to get their money back.

At first glance, it’s a little puzzling why the court bothered to decide this case at all. It generally only hears cases that resolve matters of extraordinary national importance, well-established disagreements between lower courts, or issues likely to recur frequently or affect large groups of people. Colorado’s scheme was unique among the states. Moreover, within a week of the Jan. 9 oral argument, the Colorado legislature unanimously passed a bill fixing the procedure by which exonerees can receive refunds, a bill that the governor signed into law six weeks before the court issued its opinion. A change in circumstances of this magnitude might have caused the court to consider dismissing its writ of certiorari. But the court forged ahead with Nelson. Why? It probably wanted to make a point. Specifically, the majority likely wanted to take a strong and unified first step toward addressing the Due Process rights of a larger group: people whose property is seized without having ever been convicted of any crime.

Thanks to John Oliver and Donald Trump, among others, the most high-profile such seizures is the abuse of civil asset forfeiture laws, which allow police to seize property that has been involved in a crime—using a preponderance of evidence standard, rather than the guilt beyond a reasonable doubt one—regardless of whether the property owner has been arrested, let alone convicted. Forfeiture remains a favorite pastime of law enforcement, which often keeps the seized property or the money from selling it, but its gross overuse has attracted the ire of both liberals and conservatives.

Another similar issue arises when police take money and/or property from the people they arrest as evidence or for safekeeping and then maybe return it (or maybe not) when the arrestee’s criminal case ends. Due to convoluted and drawn out property return procedures—or simply law enforcement recalcitrance—people whose cellphones, wallets, medications, or even cars are confiscated upon arrest may have to wait protracted periods or give up on seeing their property returned altogether, especially if they don’t have a lawyer to help them navigate the system. Police also may charge fees for the privilege of being arrested, which may or may not be refunded if the criminal case ends without a conviction. Each of these seizures comes with the same impermissible erosion of the presumption of innocence that Justice Ginsburg identified in Nelson.

The court appears to be on the lookout for a good vehicle to address these Due Process concerns but hasn’t had much luck yet. In March the justices declined to hear Leonard v. Texas, in which a woman challenged the forfeiture of more than $200,000 that she claimed were proceeds from the sale of her home but which the police claimed were proceeds of drug sales after they found the money in a safe in the trunk of a car driven by her son on a route known for drug trafficking. No one connected with the money was convicted of any drug-related offense, and a bill of sale for a home was found with the cash in the safe, but the Texas court nonetheless upheld the forfeiture, finding that the woman was unable to establish that she was an innocent owner of the property. The court denied review of the case because of a critical procedural flaw, but in a statement accompanying the denial Justice Thomas made clear his distaste for recent “egregious and well-chronicled abuses” of forfeiture law—including the way it is used to prey upon the poor and minorities—and signaled his interest in a case that would give the court an opportunity to rein in those abuses. (Thomas’ idiosyncratic dissent in Nelson doesn’t undo his indictment of civil forfeiture laws in Leonard but suggests he’s much less likely to be receptive to challenges to seizures in the criminal context.) The court also expressed some interest in hearing an appeal from an 8th U.S. Circuit Court of Appeals case, Mickelson v. Ramsey County, that upheld a Minnesota county’s policy of charging a $25 “booking fee” that could be refunded upon showing that the case ended in the arrestee’s favor. The court ultimately voted against hearing the case two days before the Nelson opinion came down. But it’s important to note that while the 8th Circuit turned away this challenge to the booking fee policy, its opinion left open the possibility that future plaintiffs could show a Due Process violation under circumstances similar to those in Nelson, that is, where a state’s procedures make it too expensive and time-consuming for people to recover their property after a criminal case ends without a valid conviction.

In the end, the court was left only with Nelson to set up a beachhead on the issue of abusive property seizures. It’s one that sits at the intersection of causes dear to both the liberal justices (rights of criminal suspects) and conservative justices (government interference with property rights), offering the tantalizing prospect of opinions supported by broad coalitions that cross ideological lines on a matter of great public interest. Forfeiture reform has proponents on both sides of the aisle in Congress, so the court likely won’t be accused of legislating from the bench. And it can’t hurt that public opinion shows strong opposition to seizing a person’s property before he or she has been convicted of a crime. The court’s response in these cases should be seen as strong encouragement from the justices to bring them others with well-developed records that allow them to squarely address these constitutional concerns. For those justices who spent the last year working to counter the perception that the Supreme Court should not be seen as an institution as politically polarized as the rest of the country, those cases cannot come fast enough.