00:00 [Archival]: Case I have to announce is number 94-8729, Bennis against Michigan.

00:14 Leon: Hey, everyone, this is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Bennis v. Michigan. At issue is civil forfeiture, a practice that allows law enforcement to seize a person's private property if it's implicated in an alleged crime and to keep it, whether or not the owner is found guilty.

00:35 [Archival]: You don't need to be proven guilty of a crime for your goods to be taken away.

00:38 [Archival]: So there's no trial, there's no requirement to provide evidence to prove the state's suspicion, they just take your stuff.

00:47 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

01:00 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court decisions that have broken down American society like radiation on human DNA. I am Peter, Twitter's The_Law_Boy. I'm here with Rhiannon...

01:16 Rhiannon: Hi, everybody.

01:18 Peter: And Michael.

01:18 Michael: Hey.

01:18 Peter: And today we are talking about Bennis v. Michigan. This is a case about civil forfeiture, the process that allows cops to permanently seize the property of criminal suspects, whether or not they've been convicted of a crime. This is the latest addition to our catalog of episodes in which the Court gives a big thumbs up to the most on their face egregious practices of the American criminal justice system. And before we get into it, I'm gonna pose a law school-style hypothetical to our listeners...

01:50 Rhiannon: Oh.

01:51 Peter: Yeah.

01:52 Rhiannon: A little blast from the past.

01:54 Peter: That's right, you are a married woman. You and your husband co-own a car that you share. One day, that no good son of a bitch goes and hires a prostitute, and they do it in your car, they get busted...

02:09 Rhiannon: They do what?

02:09 Peter: Prostitute stuff, you know. Some cops bust them, right, and now the question is, who does the car belong to? If you answered the police department, you are correct. If not, you're gonna wanna keep listening. This case is from 1996, and it goes 5-4 along mostly ideological lines, with one exception. Kennedy joins the dissenters, while a young and spry Notorious RBG joins the conservatives. Yet another example of just how weak and out of touch Ginsburg often is on issues concerning police abuses.

02:57 Rhiannon: Yeah, thanks a lot, Ruth.

03:00 Peter: It was a different time, though. Mid-90s, Fresh Prince still on the air.

03:03 Rhiannon: And that caused Ruth to be a dumb ass, I guess.

03:06 Michael: The one and only cultural touchstone.

03:06 Peter: That's my guiding light.

03:12 Michael: Peter's lone star, the run of Fresh Prince.

03:16 Peter: The majority is written by Chief Justice William Rehnquist, who we've noted in the past is an all-time piece of shit.

03:23 Rhiannon: Absolutely.

03:24 Peter: We'll talk a little bit about his judicial philosophy, 'cause it's not just important to this case, but also to how a lot of conservatives perceive the Constitution. Conservatives and especially the ostensibly serious conservative intellectuals will often talk about how they favor small government, and as many people have observed, any digging will reveal that what they mean is a small federal government and that they are then surprisingly supportive of leaving people at the violent whims of state and local governments. First, we should go through how civil forfeiture proceedings happen. How does this work?

04:00 Rhiannon: Yeah, yeah, totally. So what we're talking about is police taking property when somebody is arrested for a crime and then that property, the ownership being transferred to the county or the state that you're in, regardless of what happens with the criminal case. So just up top want to state that every state in the US has different civil forfeiture laws, and federal law enforcement and the Department of Justice have their own civil forfeiture scheme. So this rundown of how civil forfeiture proceedings kind of work in court is gonna be just really general. Broadly speaking, three types of property are subject to being forfeited: That's contraband, instrumentalities, and proceeds.

04:47 Rhiannon: Now, contraband is property that is illegal in and of it itself, say like methamphetamine or counterfeit money, and instrumentality is property that is used in furtherance of criminal activity, so for example, like a car that's used to traffic drugs, and then proceeds are obviously like the profits of illegal activity. These three kinds of property are typically what can be seized by law enforcement and then forfeited to the jurisdiction that you're in. So for example, in a lot of states in the US, say you're pulled over for a traffic stop and over the course of that stop, the police find drugs in your car. If the police suspect that your car is being used as part of, say, suspected drug trafficking, then according to civil forfeiture laws, the car can be taken from you.

05:40 Rhiannon: So the legal question of whether that property has been seized properly by the police and whether ownership of that property can be transferred to the county or the state, that happens in a civil proceeding rather than as part of the criminal case. Separate and apart from the criminal case in which an individual's guilt is determined, there's another kind of case that makes its way through civil court as opposed to criminal court, and it only has to do with whether the property seized in a criminal case can now belong to the county or the state. Without getting too technical, there's this idea from English common law that property used or money earned as part of criminal activity is also said to be guilty, so to speak. Like the property, right, the thing, separate and apart from the person who's accused of criminal activity, and our law allows for what's called an in-rem proceeding, meaning a lawsuit against an item rather than a person.

06:41 Peter: Giving me deep flashbacks to the parts of property law that I did not understand.

06:46 Rhiannon: Yeah, and civil procedure. So I personally, in my own practice, I've seen many of these civil forfeiture cases happen in court, and so just to explain the difference a little bit. In a criminal case, like the case name, right, we're all familiar with that. It'll be like State of Texas versus Don Johnson, name of the person, but like the accompanying civil forfeiture case, that case is called State of Texas versus 2014 Hyundai Elantra. It is a civil proceeding against a piece of property.

07:16 Peter: Hyundai, how do you plead?

07:19 Rhiannon: Right, and the in-rem proceeding can move through their court completely separate and regardless of the result in the in personam criminal proceeding. But what happens in the lawsuit against the property is that basically, again, this is really over-simplified, but basically a prosecutor shows that the property was seized properly by police pursuant to suspected criminal activity, and then civil forfeiture law says that ownership of that property can therefore be transferred to the county or the state.

07:48 Peter: Congratulations, Texas, you are now the proud owner of a 2014 Hyundai Elantra.

07:54 Rhiannon: Exactly. And an owner of the property can contest the lawsuit or assert her own defenses to the property being seized, but that doesn't happen often, and we'll talk about that later. In practice, like I said, I've seen this tons of times in rural Texas counties where I've been a public defender, sometimes like the entire civil docket will be civil forfeitures on a given day in court, and it'll be like a long list of cases and the judge just read them off and it's this crazy, almost like robotic automatic moving through the docket. So it'll be like State of Texas versus 2009 Chevy Silverado, State of Texas versus $1785, State of Texas versus Sea-Doo Jet Ski, over and over and over, like dozens of cases.

08:39 Rhiannon: And the judge calls off each case and the prosecutor will just say the boiler plate legal terms of art that are necessary. So, like, Your Honor, this property came into the possession of the county when the police department seized it pursuant to an arrest for trafficking, yada yada yada. And the judge says, "Is anybody here to contest this" Silence in the courtroom, and the judge goes, "Granted," to every single one, and then moves on.

09:02 Peter: That is my Sea-Doo, Your Honor, and it did nothing wrong.

09:10 Rhiannon: And then the judge moves on. And so the people whose property has been taken, a lot of times never know that they can show up to fight the case, they never even know where their property had been taken. You do have to be given notice that the property is going through this proceeding, but if you don't speak English, sometimes the property that's seized is less valuable than what it would cost to hire a lawyer to represent you to fight it. It's also the burden that the prosecutor has to show is often really, really low. So even if you say like, hey, wait, that's mine and I need that, that's not enough to get your property back. All the state has to show in a lot of cases is that it was just seized as part of suspected criminal activity, that's it, and then they can own it. And the prosecutor's office or the police then use all of that property that's newly come into their ownership, and remember, this includes straight up cash, sometimes, they can use all of that for their own use or they set up auctions to sell stuff like cars, etcetera, so.

10:12 Peter: Well, that all makes perfect sense.

10:16 Rhiannon: Yeah, great.

10:17 Peter: So I guess let's move on to what happened here, because I'm totally comfortable with how that all works.

10:25 Rhiannon: Right. So let's talk about Bennis versus Michigan and what happened in this case to get to the Supreme Court. Gotta say, Peter hinted at it, but these facts, they feel like a good country song, like somebody should write a nice song about poor Tina Bennis. This one's a little juicier than the dumb shit we usually have to talk about, so, yeah, okay. Tina and John Bennis are a married couple living in Detroit, Michigan in 1988.

10:51 Peter: But it gets worse.

10:56 Rhiannon: When one night, John doesn't come home at the usual time after work. Now Tina, a concerned wife, she's frantic, she starts making phone calls, and the next morning, finally she gets ahold of a donut addict at the Detroit police station and she learns that, what do you know, dear husband John is in jail 'cause he was arrested last night for soliciting a sex worker. And as if this isn't bad enough for Tina's life, her rolling stone was caught engaged in illegal sexual activity inside the car that John and Tina owned together, it's a 1977 Pontiac. So John and Tina in fact had split the $600 cost and purchase that car together, and now Tina's cheating ass husband is in jail and she doesn't have a car, 'cause the county seized it when John was arrested, saying that it was part of his criminal activity in soliciting a sex worker.

11:56 Rhiannon: So the county moved to forfeit ownership of the car from the Bennises to them under the Michigan specific statutes at that time. And remember, earlier I said that in these civil forfeiture cases, often the legal basis for forfeiture is this legal fiction that a piece of property is somehow guilty. So here in the Michigan case, the county filed a lawsuit that gets the Bennises' Pontiac declared a public nuisance. And then their ownership interest, the Bennises' ownership interest in the property, is forfeited to the county.

12:31 Peter: To be fair, it does sound ridiculous that the Pontiac could itself be guilty, but if any car was going to solicit sex, I feel like a '77 Pontiac sounds about right.

12:43 Rhiannon: Yeah, that's right. Okay, so Tina says, wait a minute, my raggedy piece of shit husband aside, that's my car too. I paid for it, it's my private property, and I didn't know my soon-to-be ex-husband was gonna go around getting illegal blowies in it. Tina wants to assert what's called an innocent owner defense, which is to say I own this piece of property that was seized, but I was innocent of any criminal activity, and so I should retain my ownership in that property. But Michigan law didn't allow for an innocent owner defense to civil forfeiture.

13:20 Rhiannon: So the trial judge in Wayne County basically said like so what, Tina, and ordered that the car be confiscated. And he noted that he could order that Tina Bennis be compensated for the $300 that she put into the car to purchase it, but he notes like, I'm not gonna do that. And his legal reasoning is basically that the car is an old piece of shit, like he says, "There's practically nothing left minus costs in a situation such as this." And I feel like, okay, fine, like Mr. Shady Shade, like insult their car or whatever. But why then is it so important for the county to seize ownership if it's a valueless car?

14:01 Rhiannon: So at any rate, Tina Bennis appeals this decision from Wayne County Court, she appeals it up and it makes its way up to the Supreme Court. Specifically what the Supreme Court is deciding in this case is whether Tina, not being able to assert an innocent owner defense, whether that violates the Constitution.

14:18 Peter: Right.

14:19 Rhiannon: Hey, wait, let's go to an ad.

14:21 Peter: So let's talk about the law. There are two constitutional amendments at play here: The Fifth Amendment, which prohibits the government from taking your property without just compensation...

14:32 Rhiannon: That's a good one.

14:33 Peter: And the Fourteenth Amendment, which says that the government cannot take your property without due process of law.

14:38 Rhiannon: Another great one.

14:39 Michael: Yeah, big fan of the Fourteenth.

14:40 Rhiannon: That got that one, two punch there, hit them, Fourteenth.

14:44 Peter: So Tina, this woman whose life is just an absolute shambles, is essentially saying that When you confiscate my car for something my husband did when I didn't know about it, that is fundamentally unfair to me and should be considered a violation of my due process rights, and also I was not compensated for it. And the court's like, no, actually, no, we think that that's okay. Whatever.

15:10 Rhiannon: It's good. It's right. Yeah.

15:14 Peter: So the opinion opens up by talking about precedent, which is like how you know there's absolutely no good reason for what it's about to hold. They're basically saying, look, it may seem unfair to you that you can lose your car because your husband was doing something illegal in it, but the government has been pulling this bullshit for centuries, so our hands are tied. And so this opinion, no joke, opens up by talking about a case from 1827, where a ship that had been commissioned by the King of Spain attacked a US vessel and was therefore held to be forfeited, even though the owner himself was not responsible for the attack. The court there held that the offense was attached primarily to the ship, so the ship itself could be seized.

15:55 Peter: This is sort of getting back at what Rhiannon was talking about, where the ship is guilty. So on top of the fact that this makes no sense, because the ship itself is not responsible for an attack, like who gives a shit about this? As a rule, if you find yourself investigating a situation involving the King of Spain in 1827, so you can figure out what to do about a guy who paid $6 for a blow job in a Pontiac in 1993, maybe you should take a step back and ask yourself What the fuck you're doing. And so Rehnquist just keeps going on. He then cites to an 1878 case about a person who was leasing a distillery, a 1926 case about a car dealership... I assume that was the first car dealership. Finally, the most recent... That was not that good, Rhi.

16:47 Rhiannon: I was just thinking about the first car dealership ever, like it's funny.

16:53 Peter: Some guy was like, "What if I sold these cars? What if I had a bunch of 'em?"

16:58 Rhiannon: Right. They're like transitioning, so they also sell horses and horse-drawn carriages, and they're like, look, we got this new technology shit.

17:06 Peter: You want a car or a unicycle? So Rehnquist then finally gets to the most recent case about this, a 1974 case about a yacht lease, where the court rejected the so-called innocent owner defense. And what he essentially says is like, look, we've been holding that property can be forfeit even if the owner is innocent for all these years, it simply cannot be a violation of the Constitution.

17:32 Rhiannon: Nothing we can do.

17:34 Peter: Yeah, and this touches on an important aspect of conservative jurisprudence that we've discussed before, the weaponization of history to justify the present. In simple terms, conservatives view legal rights as static over time; more specifically, they view past interpretations of constitutional rights as sort of necessarily shedding light upon what the correct interpretation is in the present. And the result is that we are somehow in the modern day obligated to abide by the same rules as we did during a time when infant mortality was like 45%. And all of this discussion of precedent serves as a very effective dodge of the real question, which is, does this rule make any sense at all.

18:26 Peter: Like we mentioned, the premise is that the property being seized is somehow attached to the criminal offense that it was used to commit, as if the property itself is guilty. But that doesn't really make any sense, obviously. The fact that an inanimate object was used to commit a crime does not mean that the crime and the object are somehow meaningfully intertwined with one another. One of conservatives' favorite sayings is "guns don't kill people, people kill people." In my mind, maybe a bit of an over-simplification, but a much more convincing slogan is "cars don't hire prostitutes, people hire prostitutes."

19:07 Peter: The car is not related to the crime, it's not even really making the crime easier, at least drastically easier, so what good reason is there to deprive a rightful owner of her right to the car because it was used by someone who happened to be hiring a prostitute at the time. And if there's no good reason besides the fact that we've always done it, how can it not be a violation of her constitutional right to due process? I think that's like the bottom line for me. One of the dissents here is by Justice John Paul Stevens. The dissent itself hits all the major points, I think, and maybe the funnest part of it is that when he says that using this logic, the government could seize a cruise ship because one passenger committed a crime.

19:45 Peter: And I swear to God, Rehnquist's only response to this is literally, "Well, we've never held that the government could seize a cruise ship because one passenger committed a crime."

19:53 Rhiannon: Thanks, Bill.

19:55 Peter: Stevens is saying, look, this rule cannot be right because it would lead to these insane outcomes, and Rehnquist goes, yeah, but this case isn't about cruise ships, buddy, so whatever.

20:05 Rhiannon: That's something else.

20:07 Michael: It's so fucking dumb.

20:08 Peter: It's so fucking dumb. Just no regard for whether or not the reasoning he's using is sound, and also sort of implying like, yeah, well, if that happens, we'll just make up a rule that says you can't do it, bada bing, bada boom. You lose, Stevens. The next thing he does is dive into some of the reasons that the rule exists, and they're all just dogshit stupid. He says, look, this isn't meant to punish the owners, it has a deterrent purpose, it prevents the illegal use of property by "rendering a legal activity unprofitable." This is the kind of reasoning that should get you disbarred, I think. Anyone who understands the meaning of words can tell you that you can't deter crimes by punishing people who don't have anything to do with the crime. This woman was sitting at home. She can't be deterred from doing anything, it's bizarre.

21:00 Michael: In light of this ruling, wives aren't gonna stop like co-owning cars with their husbands.

21:07 Peter: That'll teach you to trust that piece of shit you married, Tina. That's the whole point, is they don't know that their property is being used for illegal activity. It's the whole point. To give him a little bit of credit, I think what he's getting at is to say like, look, you'll be more careful with who you let use your property, if you know the government can seize it if a crime happens. Not only is that extremely tenuous, it's not addressing the situation here, which is just punishing an innocent party. It's especially bizarre in the context of a marriage, but it's really bizarre in almost any context where you just sort of loan out your property to someone who has a good reason to use it.

21:43 Michael: Right, and Rehnquist doesn't talk about another reason for civil forfeiture to exist. And it's because a big reason for its existence actually cuts against everything he wants to do here. Yeah, interestingly enough, as Peter mentioned, it starts with admiralty, maritime cases, and all the early cases are on the ocean, boats or customs, import export stuff. What those have in common is that often the actual guilty party isn't in the personal jurisdiction of the United States' courts, so you can't go arrest the King of Spain or whatever, all you have is the shit, you have their contraband, you have their boat.

22:29 Michael: And so you're like, well, we can't drag him into court, but we can take his shit. But you can bring John Bennis into court here. There's no level of applicability to that sort of animating principle for this at all in the modern uses of civil forfeiture.

22:44 Rhiannon: That's a really good point.

22:45 Peter: Right. There's also this Fifth Amendment argument. The Fifth Amendment is about the Takings Clause, which says the government cannot seize property for private use without compensation, and Tina Bennis is saying I wasn't compensated.

23:00 Rhiannon: Right, and generally like this Fifth Amendment Taking Clause, that refers to eminent domain, the process by which the government takes private property and puts it to public use, so for example, like seizing property that it will use for development. But Rehnquist says, well, look, this isn't an eminent domain seizure, it's a different type of proceeding, so the Takings Clause just doesn't even apply.

23:24 Peter: Yeah. And this argument is bizarre to me, like the point of the Takings Clause is to limit the ability of government to seize your property. So it seems weird to say that there's basically an end run around that in situations where the government has an excuse, basically. We talked about the Takings Clause in our Kelo v. New London episode, where they seized a property and used it to try to develop it. That's the main use for eminent domain. But the function of the clause in the Fifth Amendment seems to me like it should be broader than that, right. The government can't just take your property for public use, but it can take it if someone else uses it for illegal shit? I'm not super familiar, I admit, with the jurisprudence on this, so I don't wanna overstate the point, but it seems to me to fundamentally undermine the promise of the Fifth Amendment.

24:11 Rhiannon: Right, I think if you think about why we have that clause, it's not just eminent domain, it's about takings generally.

24:21 Peter: Yeah, if it really is designed to constrict government power, then it shouldn't be limited to very specific contexts.

24:29 Rhiannon: Exactly.

24:29 Peter: So I wanna talk about the dissents and the concurrences a little bit here. As we mentioned, Stevens' dissent, very solid, it starts with a great opening line: "For centuries, prostitutes have been plying their trade on other people's property."

24:43 Rhiannon: Okay, Stevens, alright, Johnny.

24:46 Peter: Yeah, buddy, yeah, buddy.

24:47 Rhiannon: You got it, dude.

24:49 Peter: To put this in perspective, Stevens was like 80 years old.

24:52 Rhiannon: Right. And still, Stevens said sex worker rights now.

24:56 Peter: That's right.

24:56 Michael: But he was like a navy man, right, in his younger days.

25:00 Rhiannon: That's right.

25:00 Michael: He probably docked his ship in many foreign ports of call.

25:06 Peter: That's right. So yeah, the rest of his dissent makes a very compelling case in my mind that it should be unconstitutional to seize property that is only incidentally used in criminal activity.

25:18 Michael: And he has a really good example of this. He talks about real property, like an apartment building, and he was like, look, nobody contests that you can't seize an apartment building from its owner because one tenant was like smoking a joint in his unit. And Stevens' point is like, look, the car is being used in the same way, it's just a place to do it, right, it's not like when you're bootlegging or pirateering or whatever. And he knows that this point was actually addressed in the Michigan courts, and the way they get around it is by saying, well, look, as I think Rhiannon said up top, this car is a nuisance, and the reason it's a nuisance is because it was being used in an area that is itself an ongoing nuisance. This area is so blighted, that like everything in it's a nuisance, and especially if you're like getting a blow job in it, your car's a nuisance.

26:11 Michael: And this kind of highlights like the inherent inequality built into this. Some rich asshole in a nice neighborhood can get a blow job in his car, and that wouldn't be a public nuisance because it's a nice neighborhood, so his fucking Mercedes can't be taken by the state.

26:27 Peter: Yeah, the prostitute's cuter. The judge is like, yeah, this whole thing looks good to me.

26:30 Michael: Yeah, so I mean, it's just total bullshit, and it kind of shows just how unfair and injust this is.

26:38 Peter: Justice Kennedy, just a quick aside, to give him some credit here, he files a very short dissent. We have noted in the past that we consider him a pretty dumb guy. All of his best decisions are sort of the result of his libertarian streak, and this is one of them, and it comes up in gay marriage cases too. Here and there, he will pop up with these sort of libertarian takes and say, I don't think the government should be able to do this. And you know, pat on the back. Ginsburg files a concurrence, as we mentioned, it's just her at her worst.

27:08 Rhiannon: Just awful.

27:09 Peter: I think the reason she files a concurrence is to sort of try to explain herself here, and she basically tries to rely on the technicalities and procedures of the specific case and the specific Michigan law to justify the Court's approach. She goes so far to point out that they had another car.

27:24 Rhiannon: Tina and John Bennis did.

27:26 Peter: Yeah. As if your constitutional right to not have your car seized for no good reason disappears when you have like two cars or whatever. She focuses on these minor technical points about the case rather than addressing the broader issue of what the state can do constitutionally to someone who has not done a single thing wrong.

27:46 Michael: There are two little technicalities in particular that she hangs her hat on, which is one that the Court had discretion to like give Tina Bennis money back, a reminder of how to use that discretion is to not give her anything and insult her. The other thing she hangs her hat on is that... This is all when the court is sitting in equity, that's how these are decided, rather than a court of law, a court of equity, sort of considerations of fairness predominate more so than strict legal rules, which is why like the court has discretion to maybe give her money and things like that. It's like what's fair.

28:20 Peter: This is something that only lawyers know, the whole equity concept, but there's an entirely different part of the law that is like the equitable part of law, where courts are just like, they're sort of measuring what is fair, and it's considered a separate and unique part of the law for how courts usually analyze cases.

28:37 Michael: Where fairness just doesn't matter.

28:42 Rhiannon: We're saying like fairness is a different part of the law than just regular law, right?

28:47 Michael: At best a secondary concern in the normal course of things.

28:51 Peter: Like the fact that the court is allowed to consider fairness is separate and apart from whether they were actually fair to her, so I don't see how this gets around the fundamental problem here.

29:03 Peter: Exactly.

29:04 Michael: Yeah, her punctuation is saying like, look, we wouldn't be showing respect to Michigan if we don't think they would be good at equitably administering these sorts of actions, and it's like this very case, the equities, the discretion were abused and all they did was humiliate this woman.

29:24 Rhiannon: Exactly. It's fundamentally unfair, on its face.

29:26 Michael: As a note for how dumb this argument is, you would never guess how cops and state courts handled their freedom under this law in Michigan. For the next 20 years, it was one of the worst states in the country on civil forfeiture, and they've just in the last few years, being updating and improving their laws and the sorts of improvements they're making highlight how fucking bad it was. So one law on 2015 was like, you have to have clear and convincing evidence, not a preponderance of evidence, which is like the lowest fucking standard. Basically it means like 51%, and in 2019, they changed it so that you actually have to be convicted of a crime, 'cause before, as with Tina, you don't even have to be convicted and they could take your shit and never bring charges, and your shit is gone forever.

30:15 Peter: I think this is a pretty good time for an ad.

30:18 Peter: Alright, I think it would be useful to discuss some civil forfeiture facts.

30:22 Rhiannon: Yes.

30:23 Peter: What does this look like kind of nationwide?

30:26 Rhiannon: Yeah, so the pigs are always gonna say that they need civil forfeiture to fight crime. So like for example, I think this quote sort of just highlights what you're always gonna hear from cops when they are asked about civil forfeiture. Back in 2017, when speaking to the state legislature, a Texas county sheriff said: "Many times in my law enforcement career, we could not have been effective in doing away with gangs, drug cartels and whatever without the civil asset forfeiture. Many times forfeiting civil assets is the only way you're gonna get the kingpin of the operation."

31:01 Peter: Yeah, that's why there's no cartels anymore.

31:04 Rhiannon: Right, exactly. That's not what the data on civil forfeiture bears out, and what we know about civil forfeiture activity is that point blank, it's policing for-profit. Like on the one hand, forfeiture activity in the past 20 to 30 years has completely exploded, but on the other hand, like Peter just said, we haven't taken out the drug cartels yet, so obviously it's not that fucking effective. The Texas Tribune did a report based on 560 forfeiture cases filed in 2016 across four Texas counties. Half of the cash seizures were for less than $3000; 20% of the cases did not result in anyone even being charged with a crime, and in 40% of the cases, no one was ever found guilty of a crime connected to the seizure.

31:52 Rhiannon: So they're not using this to get at kingpins, they're stealing money from poor people, period. And this was just one year of cases from three rural counties in Texas and six months of cases from a large urban county, and the total value of assets seized was almost $10 million. Texas has 254 counties, so you can imagine the sheer size, the scale of what civil forfeiture does to, say, local economies, frankly. Okay, now the Feds, I think I said this up top, but the federal government has its own civil forfeiture scheme, and we have some data on that.

32:34 Rhiannon: In 1986, the Department of Justice's Asset Forfeiture Fund took in almost $94 million, but by 2014, annual deposits into that fund had reached $4.5 billion. That's an increase of more than 4500%. And I think it's important to note that civil forfeiture activity is sort of exploding, really ratcheting up on an exponential level, at the same time as the war on drugs, general police activity across the country and sort of the engine of mass incarceration really ratcheting up. And important to note, it's not just people's cash and cars that law enforcement is seizing, the pigs will seize people's homes, homes, literally.

33:23 Rhiannon: Philadelphia has a notoriously aggressive civil forfeiture system, and just one case from 2014 I think highlights how egregious these practices often are. A guy named Chris Sourovelis, his son was arrested outside the family home for selling like 40 bucks worth of drugs. And when his son was arrested, police kicked out Chris and his wife from the house and took it over. Chris and the Sourovelis family had to appear in court nine times to get their house back, and they could only get their house back once they agreed to change the locks and never let their son stay there.

34:04 Peter: It's illegal to have a cool son, I guess.

34:09 Michael: Another recent, particularly egregious example, was in Texas, where else.

34:16 Rhiannon: Of course.

34:16 Michael: Where this guy was driving along Highway 59, I guess he was speeding, he had someone with him in the car. A cop pulled him over, thought something didn't seem right with him, got a search warrant for the car, there was a safe in the back. The guy said it was his mom's, the passenger said something different. And so anyway, they open up this safe, they find $200,000 worth of cash and a bill of sale for a house in Pennsylvania. And the guy says, look, I told you it's my mom's, she sold her house in Pennsylvania, and these are the proceeds from the sale. The mom says the same exact thing. The cops say, no, it's drug contraband, and they seize the $200,000. The mom and the son go to fight it, they go to that proceeding. The mom is a fucking IRS agent. She works for the federal government and is saying, this is my money. I stopped holding my money in banks after the crash in 2008, and I don't trust them, so I put it in a safe. And on the other side of the ledger, a cop said, in my experience, people on that highway tend to be running drugs, and the court was like, I think the cop is right.

35:27 Michael: The preponderance of evidence suggests that these are drug contraband, this $200,000, it went up to the Supreme Court, and the Supreme Court decided not to review it because they hadn't raised constitutional claims at the lowest levels, and so it wasn't properly presented for review.

35:44 Peter: That really put a dent in the common strategy of drug dealers to drive with your mom, to go sell drugs and to put all the money you're gonna use to buy 25 pounds of cocaine in a safe in your trunk.

36:01 Rhiannon: Right. It could be a cartoon, it's a fucking bank robber with a bag that has a money sign on it. Like yeah, that's what drug dealers do. Back to just the small forfeitures of smaller cash amounts, many of these forfeitures start with a traffic stop that results in some kind of search. Always, you have to go back to who is this happening the most to. And we know that people of color and the poor are going to be disproportionately pulled over, and we know that once there is a traffic stop initiated, people of color are going to be disproportionately searched. And so now imagine that some small amount of drugs or just bullshit cop suspicion results in $500 being taken from someone who might have like just cashed their check and their car that they used to go to work is taken from them too, that's what forfeiture looks like.

36:54 Rhiannon: And the police are incentivized to do it because there are no consequences for stealing on this scale for millions of people in the aggregate. This is a cash cow for local jurisdictions and courts side with them on it constantly. And almost, like I said up top, like automatically. One thing that further complicates and sort of makes this even more egregious is that states and municipalities and counties don't have a lot of accountability built into their civil forfeiture laws, so in a lot of places, just recently, due to investigative reporting and stuff like that, it's come out that prosecutors will dip into civil asset forfeiture funds to take vacations, to pay their secretary, to give everybody a nice holiday bonus.

37:44 Michael: Functionally indistinguishable from the Mob.

37:47 Rhiannon: Right, yeah, absolutely.

37:48 Michael: It's a protection racket.

37:50 Rhiannon: Stealing money and then like using it for their lifestyle, right. And taking care of...

37:55 Michael: Backed by the threat of violence.

37:55 Rhiannon: Exactly, exactly.

37:58 Michael: And I just quickly wanna note, it doesn't have to be this way, right? Like New Mexico, North Carolina and Nebraska do not have civil forfeiture. So shout out to them. Land of enchantment, good job. It's not all bad news on this front. Last year in 2019, the Court unanimously reined in civil forfeiture, at least to a certain degree. They held basically, that the Eighth Amendment applies to the states, and the Eighth Amendment has an excessive fines clause, and so they said, the excessive fines clause applies to asset forfeiture. In that case, it was like a guy who had, I think, just a little bit of pot on him or something, had his $35,000 SUV seized, and the court was saying that's an excessive fine. And that's good. That would help in some of the more egregious cases. It wouldn't help someone like Tina Bennis, whose car is only worth $600 and only has a $300 interest in it.

38:57 Michael: It wouldn't help pretty much anyone in more impoverished communities who take the brunt of this anyway, because the assets they have to be seized aren't worth that much in an objective sense that would implicate the excessive fines clause, but they're worth a lot to them. $500 is a lot for someone living on the edge.

39:16 Rhiannon: Exactly, that's right.

39:17 Peter: It is a check and it's an important check on them, but I think that this fight is far from over, and I think we'll see over the course of the next decade or so what the numbers actually look like. My guess is they won't change that much.

39:28 Rhiannon: Yeah, and as we wrap up, I have been thinking a lot about, there's a lot of emphasis throughout the opinion on the remedial nature of the Michigan statute, that the law in Michigan is designed to sort of remedy a wrong and do public good, and that's why it's okay. Ruth Bader Ginsburg is talking about equity and fairness, and they're doing all of that to say that this law is not designed to be punitive. Now, I just think that's a completely depraved and reductive view of what it means to punish somebody. These Justices can't imagine how punitive it is to have $1000 or your Honda Civic taken from you after being pulled over for jack shit, because it's never happened to them and it won't ever happen to them.

40:17 Rhiannon: And it comes down to what is evoked for the Justices when words like criminal activity and suspected crime are said. If the police think that you're doing something bad, then you're a different kind of person than me and my family, and whatever happens to you as a result, according to the Justices, it might be punishment, it might not be punishment, but the state can do it anyway.

40:40 Peter: Right. We should circle back to just how unlikely it is that this would ever be applied to the lives and communities of rich people. If you're a listener to our show, there's a decent chance you are a law student or a lawyer, decent chance you come from a fairly well-off community, how many kids you knew dealing weed in high school, in college, how many kids did you know that bought and in some way distributed cocaine in college or after college?

41:13 Rhiannon: Yeah, or Adderall, right.

41:13 Michael: And can you DM me their contact info.

41:15 Peter: Did it feel to you... Does it feel now like there was ever any significant risk that their parents' house would be taken away?

41:27 Rhiannon: Exactly. It's fucking absurd.

41:29 Peter: Of course not. This is something that happens to poor people, that's it. This is a system by which the government and police, in particular, literally siphon money out of poor communities. And they do it using the same justification that has been used throughout history in a thousand different contexts, by claiming that it's necessary in some way to maintain the peace. The link here between this woman and any criminal activity is essentially non-existent and an opportunity is being presented to the Court to address that. Both the Fifth and Fourteenth Amendments provide for broad protections of due process and property rights. There is absolutely no "correct" reading of the Amendments. Whether they protect against an imposition like this one is entirely a matter of whether the Justices can find a good reason to.

42:18 Rhiannon: Yes.

42:19 Peter: To me, the fact that she's being punished for something that she didn't do is a fundamentally compelling reason, it's a reason that should be enough to weigh on whether or not the Constitution needs to step in here and protect the person from the state. And this taps into a very important point about how conservatives conceptualize the law generally and the Constitution specifically. It was long the conservative position that the Constitution's purpose was to restrict the federal government rather than the states, and in fact, that was pretty much taken as a given until the Fourteenth Amendment was passed in the 1870s, after which there was a steady process of the Court holding that the various provisions of the Constitution's Bill of Rights applied to state governments too, the federal government couldn't do it to you, and neither could the states, but conservatives, especially from Rehnquist's generation, Rehnquist cuts his teeth in the '50s.

43:15 Peter: That's right after the cases that held that the Bill of Rights applied to the states came down, and conservatives in his generation were very wary of this, and they were much less willing to strike down encroachments on people's rights by states than by the federal government. And this is important because it shines a light on what conservatives believe the purpose of the Constitution is, not to protect your rights per se, but to constrain the federal government, and that often leads to decisions like this which grants states enormous leeway to impose upon their citizens. That's why it's necessary for a cohesive interpretation of the Constitution to account for context, to account for power and powerlessness.

44:00 Peter: Without that perspective, when you view the law as nothing more than a series of rules, you get the Court receiving a case about a woman whose car was seized by police and somehow discussing what the King of Spain was up to in 1827. It's inherently absurd, and it is an output of a philosophy of law that has completely decontextualized the practice and understanding of law from the people that it impacts.

[music]

44:34 Peter: So next week, we're gonna take a break. No show next week. A couple of weeks ago, Rhiannon had coronavirus, and we still recorded, but this is much more significant. I'm moving to Queens. So we'll see you in two weeks, and we're gonna do a 2019-2020 term wrap-up, what happened where it leaves us, what we can expect from the Court based on it.

45:02 Rhiannon: I'm gonna yell some cuss words, it's gonna be great.

45:05 Peter: Yeah, and we can talk about our new hero, John Roberts, sorry for everything we've said, You're doing so great, John. Follow us on Twitter @fivefourpod, tell your friends.

45:18 Michael: Tell your family.

45:20 Rhiannon: Tell your daddy.

45:23 Peter: Tell your gorgeous male friends in the Austin area.

45:27 Rhiannon: That's right, that's right.

45:34 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

45:55 Leon: From the Westwood One Podcast Network.