Epstein on the SCOTUS Illinois Drug Forfeiture Case

A Plea For Procedural Due Process
Richard A. Epstein
October 20, 2009

Today we live in world of entitlements. We are constantly reminded that the government owes us a job, a house and a health insurance policy. This constant celebration of positive rights has a real downside, however, for it easily deflects our attention from the traditional libertarian concern that no person should be deprived of their liberty or property without due process of law. Yet all too often today, state procedures compromise the ability of individuals to keep their property and their jobs from arbitrary loss by state power.

All too frequently, the same governments that are so intent to generate a dizzying array of new positive rights are also highly insensitive to the dangers that their criminal procedures pose to protecting people from the arbitrary seizure of their property and the arbitrary loss of licenses needed to do their jobs. Two current cases illustrate the concerns.

This past week, the United States Supreme Court heard oral argument in Alvarez v. Smith, which took dead aim at the Illinois Drug Asset Forfeiture Procedure Act. This law essentially allows any local government to seize and impound, say, the automobile that has been involved in a drug crime for over six months without any hearing on the merits of the government's case. That delay is barely acceptable when the perpetrator of the crime owns, say, the car in which drugs were used or sold. But the delay is far more oppressive when the car belongs to an innocent person who had no role in the criminal act.

Richard A. Epstein