Friday, September 25, 2009

First Monday in October

On October 5, the first Monday in October 2009, the US Supreme Court is scheduled to begin its new term. To mark the occasion, the first of the Library Wednesday Workshop Lunch & Learn sessions at Brooklyn Law School, “The New Term of the U.S. Supreme Court and How to Research the Court”, will take place on Wednesday, September 30.

The ABA web site has a Preview of the Court cases for the upcoming 2009-2010 term with not only an alphabetical listing of the nearly 50 cases that the Court will review but also an argument date menu and links to the Question Presented in each case along with the Merit Briefs and Amicus Briefs. The Questions Presented in the cases scheduled for argument in October run a wide range of issues that when decided will significantly change the practice of criminal law, immigration law, copyright law, labor law, attorney-client privilege and practice regarding attorney’s fees.

One case worth watching is Alvarez v. Smith, a challenge to Illinois' Drug Asset Forfeiture Procedure Act (DAFPA). The issue in Alvarez concerns the seizure of the petitioners’ property by police who suspected that the property had been involved in a drug crime. Three of the petitioners had their cars seized, three had cash taken. None were served with a warrant or charged with the crime. Under DAFPA, the State can delay for up to six months before an aggrieved property owner can obtain a preliminary hearing on warrantless seizures of less than $20,000.

Civil asset forfeiture is one of most potent weapons used by law enforcement in the war on drugs. It allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, providing a strong incentive to seize as much property as often as possible.

At the federal level, in order to "provide a more just and uniform procedure for Federal civil forfeitures", Congress in 2000 passed the Civil Asset Forfeiture Reform Act (CAFRA) which changed the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay, and provided for compensation for attorney's fees for defendants who won in court. CAFRA reforms applied only to federal law, not to the states. llinois' DAFPA law allows the state to use hearsay evidence and sets the state's evidentiary burden at probable cause. Property owners who want to use the "innocent owner" defense are not permitted to use hearsay, and are held to a "preponderance of the evidence" standard. They are also required to post a bond on the seized property in order to get a hearing.

The 14th Amendment's Due Process clause says that a State may not "deprive any person of life, liberty, or property, without due process of law." How the US Supreme Court will apply the 14th Amendment to Illinois’ DAFPA provision is uncertain. A post written on the noted law blog, the Volokh Conspiracy, stated "The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence."

On the subject of forfeiture, the BLS Library recently added to its collection Asset Forfeiture: Practice and Procedure in State and Federal Courts by Dee R. Edgeworth (Call #KF9747 .E34 2008) with chapters Forfeiture terminology – Property subject to forfeiture – Seizure of property for civil forfeiture – Initiation of civil forfeiture proceedings – Civil pre-trial motions – Civil discovery – Civil trial proceedings – Criminal forfeiture proceedings – Parallel proceedings –Disposition of forfeited property – Real property forfeitures – Constitutional protections – Ethical considerations.

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