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October 14, 2009

Effective coverage of SCOTUS criminal forfeiture case argued today

Over at The Volokh Conspiracy in this post, Ilya Somin has lots of effective coverage of Alvarez v. Smith, a criminal-justice-related forfeiture case heard by the Supreme Court. Here is part of his effective summary of the argument as it went off today:

Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented.  Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit decision, which I feared might happen.  The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits.  They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing.  At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly.

The transcript from oral argument in Alvarez v. Smith (08-351) is available here.

October 14, 2009 at 05:57 PM | Permalink


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It says something truly disturbing about our "supreme court" that it seems more concerned about inconveniencing government agents (cops) than in protecting citizens from confiscate-first-ask-questions-later, modern-era robber barons.

Posted by: John K | Oct 15, 2009 3:12:31 PM

A mootness dismissal does seem very likely, although the problem is a class one of a type of case that is likely to recur but escape review, like all cases reviewing temporary remedies or time limited relief (Roe v. Wade being the most famous). In state practice in Colorado, this kind of case would be handled on an expedited basis on direct review of the trial court decision by the state supreme court under its supervisory powers.

The remedy fashioned by the trial court, however, is likely to be very solicitous of the statements made in oral arguments at SCOTUS. So after a remand, the case may not return to the high court.

Oral argument largely avoided addressing the issue of cash forfeitures (which make up 85% of real cases). Cash forfeitures, of course, mean that the owners of the case are in a far worse position to secure legal services. Often seized cash will also be used as a sentencing factor as a form of ill gotten gain, on top of the seizure of the property that causes it to cease to be a gain.

Also, while people of all classes have and rely upon cars, legitimate use of large quantities of cash if mostly a cultural and class issue. Middle class people have bank accounts, use debit and credit cards, and write checks. Cash is used legitimately mostly by working class or poor people who are disconnected from the banking system, perhaps because they know someone whose bank account was garnished and don't trust the banking system, or perhaps because they fear hidden banking fees.

Cash is also often used legitimately by immigrants who come from places where using cash was commonplace. Japanese office workers, for example, routinely receive their pay in cash put in envelopes for them, and Japanese tenants often pay rent in cash.

Posted by: ohwilleke | Oct 16, 2009 4:53:31 PM

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