Not sure if I'm being overly paranoid, but it strikes me that life in the US has been reduced to hoping one doesn't appear on the government's radar. If you do, between this, an essentially biased supreme court; the NSA; a militarized police; parallel construction by the DEA and FBI... - you're pretty much toast if their interest is more than cursory.
More or less, yes. However, to be perfectly fair, this is basically true in almost every nation in the world.
There are many, many laws in many, many countries that if you deal with a biased judge you are screwed. It isn't just the US, sadly. Although the US is at the point where its worse than the majority of the 1st world democracies.
The US has been pretty low on my list of places I might want to visit exactly because of this constant undermining of basic rights and freedoms. Civil forfeiture and the police apparently being able to shoot you for whatever reason they choose, is the nail in the coffin.
The issue in this case is that the defendants haven't even been convicted of a crime, which is why everyone is worried. Based on this ruling you need only be accused of a crime for the government to seize your assets. If prosecutors only put guilty people on trial you might be correct.
edit: I guess the comment I was responding to was deleted.
I find it interesting that Kagan, a former prosecutor, sees no problem with this, while Roberts, a former defense attorney, does. How many members of the SC are former prosecutors, and is there any further alignment with voting?
What is now required to restrict the numerous variations of civil forfeiture, considering the 4th and 6th amendments, despite their clarity, do not appear to be sufficient?
Is this something that can be remedied just with normal legislation, or are we now in need of a new constitutional amendment?
I'm of the opinion that neither legislation or a new constitutional amendment would help, at this point. When the majority on the SC endorses this sort of taking, they are the problem.
SCOTUS never endorsed this sort of taking, they said that it is not unconstitutional and (in this case) the defendants to not have the constitutional right to challenge it.
A constitutional amendment could trivially solve this (once you get it passed, which is highly nontrivial), while new legislation can solve it by either making such forfeitures (or asset freezes) illegal, or giving the defendants a legal (not constitutional) right to challenge it.
The example in the article seems like it violates both the 4th (being "unreasonable seizure") and the 5th (people being deprived of their property without due process). The government just confiscated everything from those people, expecting a conviction that would validate the confiscation.
Agreed. To me the explanations as to how this kind of forfeiture work just feel like absurd doublespeak to try and claim that the Fourth and Fifth somehow don't apply.
They failed to consider the rights of the accused to use their assets to choose their attorney (or pay one at all) as more important than the need of the state to preemptively foreclose the alleged artifacts of a crime. You can call it what you want, but I'm not sure we disagree, overall.
> I find it interesting that Kagan, a former prosecutor, sees no problem with this, while Roberts, a former defense attorney, does.
I find it interesting that a judge who is the former lawyer of one of the parties to a case would ordinary recuse herself, but apparently not when that party is the government.
As someone who thought Sotomayor would be awful on civil liberties due to being a prosecutor, it's worth noting that she's been one of the best in that regard (IMO) since joining the court. On the other hand, Kagan went straight from being a government attorney to the Supreme Court, so maybe you could expect her to be more inclined to side with the government in these cases.
> Is this something that can be remedied just with normal legislation, or are we now in need of a new constitutional amendment?
Legislation can certainly curb it, though it can also be repealed and bypassed if it leaves any openings.
I might be suffering from listening to too small a sample (though they were right...), but I heard much more positive commentary about Sotomayor before she was confirmed than Kagan. It seemed like party insiders liked Kagan because she was an insider, but that was all.
I think the Supreme court no longer understands what the Constitution intends and only what they vaguely remember from Kindergarten. After all the language in the 4th and 5th Amendments are rather plain which they plainly have forgotten.
An honest question: have you actually read the opinion, or are you just responding to the arguments you imagine them to have made in justifying the stance the headline causes you to imagine them to have taken?
Is there anything in particular in the reasoning of the opinion that you disagree with? I get it that civil forfeiture is very unpopular around these parts (for the record, I'm against it too), but I think we all have a right to expect the discourse on HN to rise above the level of bomb throwing, even if (especially if!) we're on the same side.
Would anyone here with sufficient legal knowledge play devil's advocate that this ruling could help set a precedent that corporate entities engaging in criminal acts could have their assets frozen more easily?
That's already the case. The threat of this kind of asset freezing was used at least as far back as the Drexel Burnham Lambert investigation in the 80s.
"The threat of a RICO indictment unnerved many at Drexel. A RICO indictment would have required the firm to put up a performance bond of as much as $1 billion in lieu of having its assets frozen. This provision was put in the law because organized crime had a habit of absconding with the funds of indicted companies, and the writers of RICO wanted to make sure there was something to seize or forfeit in the event of a guilty verdict. Unfortunately, most of Drexel's capital was borrowed money, as is common with most Wall Street firms (in Drexel's case, 96 percent—by far the most of any firm). This debt would have to take second place to this performance bond. Additionally, if the bond ever had to be paid, Drexel's stockholders would have been all but wiped out. Due to this, banks will not extend credit to a firm under a RICO indictment.[5]
By this time, several Drexel executives—including Joseph—concluded that Drexel could not survive a RICO indictment and would have to seek a settlement with Giuliani."
I guess I need to read Roberts' minority opinion. My current assumption is that a ruling the other way (in conjunction with everyone's favorite Citizens United ruling) would significantly weaken RICO.
You would only think this decision is ridiculous if you haven't read European court decisions (which are usually as inaccessible as they are irrelevant). Because the foundation of this decision is based on English legal traditions, which in general are much fairer than non-English European legal traditions.
