Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, March 5, 2019

When the law loses its way

1024px-Trial_of_a_sow_and_pigs_at_Lavegny

There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.

Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.

Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.

Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.

Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).

And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.

Not surprisingly, a long catalogue of abuses followed.

In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.

In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money -  donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.

In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.

More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.

These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.

Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.

Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.

(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)

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