A-Rod, Forfeiture and a Due Process Attack on Financial Incentives for Overzealous Law Enforcement

By Mike Dorf

My latest Verdict column uses the A-Rod saga as an occasion for considering the circumstances under which a judge orders a party to do something--go to prison based on a criminal conviction; pay money damages; or comply with an injunction--but then suspends judgment pending appeal.  I explain the relevant considerations and then go on to note that A-Rod's ability to continue to play baseball while his appeal of his suspension is pending makes a great deal of sense in light of the fact that he has not yet had his day in court (or rather, his day in arbitration, as authorized by the relevant policy agreement between Major League Baseball and the players' union).

Here I want to say a few words about the opposite situation: contexts in which the law authorizes the taking away of something valuable before a finding of liability.  The law allows for this possibility in various ostensibly extraordinary circumstances: In civil cases, courts grant preliminary injunctions without a full showing of liability and even grant temporary restraining orders based on ex parte proceedings; in criminal cases, pre-trial detention without bail (or with bail set too high for the defendant to pay) has a similar effect.

In each of the foregoing circumstances, however, there is supposed to be a strong showing that the preliminary relief is warranted.  Contrast the law of civil forfeiture, under which a relatively weak showing permits the government to seize property associated with crime.  In a very disturbing story in the New Yorker, Sarah Stillman shows how one small town in Texas and countless other jurisdictions have been abusing the forfeiture power, essentially shaking down travelers and others.  In the leading set of cases Stillman explores, the program began as an apparently legitimate effort to target drug dealers but quickly devolved into a corrupt effort to relieve innocents of their money.  The low legal threshold for initial forfeitures, the baroque system of laws that make it difficult for an innocent to recover his or her property, and the decline in other sources of revenue, have combined to make forfeiture abuse too tempting for many local governments (and state governments and the federal government) to resist.

Can anything be done?  As Stillman's article illustrates, in the most egregious case, a class action lawsuit succeeded in generating outrage and reform.  But that was just one Texas town, and the problem remains widespread.  Meanwhile, the Supreme Court has generally upheld forfeiture schemes against pure due process challenges.

Nonetheless, the Stillman article suggests at least one avenue of attack.  She writes:

States that place seized funds in a neutral account, like Maine, Missouri (where proceeds go to a public education fund), North Dakota, and Vermont, have generally avoided major forfeiture-abuse scandals. Problems seem to arise in states—such as Texas, Georgia, and Virginia—with few restrictions on how police can use the proceeds. Scandals, too, emerge from the federal Equitable Sharing program, which allows local police to skirt state restrictions on the use of funds.

In other words--and unsurprisingly--problems arise when the people seizing the money and goods get to keep a substantial portion of the money and goods.  But that's not only unsurprising.  It should be unconstitutional.  Consider two cases.  In Young v. U.S. ex rel Vuitton,  the Court allowed for private prosecution of criminal contempt actions, but disallowed such prosecutions where the private prosecutor stood to gain financially from a conviction.  Likewise, in Connally v. Georgia, the Supreme Court held that a magistrate who is paid when he approves warrant applications but not when he rejects them is not a neutral magistrate as required by the Fourth and Fourteenth Amendments.

Should these precedents apply to police who get cars, boats and cash from forfeitures?  Connally and the line of cases leading up to it are arguably distinguishable because a magistrate, like a judge, must be neutral, whereas we expect police to be "biased" against criminal suspects.  But Vuitton undercuts that distinction, because prosecutors are supposed to have the same bias.  The case stands for--or at least should stand for--the proposition that adding financial incentives to law enforcement's existing bias towards zealous enforcement goes too far.

Will the Supreme Court buy it?  I don't know, but so far as I have been able to ascertain, the Justices have not yet considered this line of argument--and it ought to have at least some appeal to conservatives no less than to liberals.