One of the most devastating aspects of the War on Drugs has been civil forfeiture. Under this procedure, the government can seize the money and property of drug defendants before they’ve even been convicted of a crime. As long as law enforcement can make any reasonable argument that assets are tied to illegal activity, defendants can’t get them back without proving they were not. Typically, they can only do that if they’re acquitted or have kept very careful records.
Civil forfeiture has been very successful at taking profits from the illegal drug industry and turning them over to the law enforcement agencies that seize them. It has also been harshly criticized for a variety of reasons. For one, it often leads to unjust results.
The U.S. Supreme Court took up the question of civil forfeiture in a federal drug case recently. It considered the justifiable scope of forfeiture. Specifically, it found that someone who doesn’t benefit from a criminal enterprise shouldn’t be the target of forfeiture.
Store employee convicted of selling legal precursor to methamphetamine
The case involved an employee of a military surplus store that sold Polar Pure, a water purification product. The defendant’s store was making a lot of money — over $269,000 — off of Polar Pure. The facts of the case are interesting, but suffice it to say that the defendant was merely an employee. Although he knew of the illegal activity, he didn’t reap any rewards for his role as store clerk.
He was convicted of knowingly selling a drug precursor and sentenced to 5 years in prison. Initially, he was not subject to a forfeiture order, but an appeal to the Sixth Circuit led to one. However, the District of Columbia Circuit had ruled the opposite in a different case.
This is called a "circuit split," which is one of the things the Supreme Court often agrees to resolve. In this case, the Supreme Court issued its opinion without hearing additional arguments.
In a unanimous ruling that applies in all circuits, Justice Sonia Sotomayor explained that the defendant didn’t appear to own any property that was tainted by drug activity. (Newly appointed justice Neil Gorsuch did not take part.) Even his salary from the store could not be considered tainted under 21 U.S.C. §853, the law authorizing civil forfeitures in criminal cases.
"[Congress] authorized the government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation," she wrote. In other words, the store’s owner initially acquired the tainted money by selling the Polar Pure and then used that money to pay the defendant’s wages, and the wages themselves were not tainted.
