Published on: Monday, March 6, 2017

In Leonard v. Texas (No. 16-122), Leonard asked the Court an important question: whether modern civil-forfeiture statutes can be squared with the Due Process Clause. Justice Thomas issued a statement respecting the denial of certiorari because Leonard raised the Due Process Clause argument for the first time in the Supreme Court. However, if the issue had been properly raised in the Supreme Court, Justice Thomas indicated some concern with the use of civil forfeiture proceedings.

Justice Thomas stated that modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes, but that these civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof. Moreover, the system - where police can seize property with limited judicial oversight and retain it for their own use - has led to egregious and well-chronicled abuses. Finally, these forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.


In Perez v. Florida (No. 16-6250), Perez was sentenced to more than 15 years' imprisonment for threatening "to throw, project, place, or discharge any destructive device with intent to do bodily harm to any person," for what may have been nothing more than a drunken joke. The trial court instructed the jury in a way that permitted the jury to convict Perez based on what he "'stated' alone - irrespective of whether his words represented a joke, the ramblings of an intoxicated individual, or a credible threat."

Justice Sotomayor indicated that the jury instruction and Perez's conviction raised serious First Amendment concerns worthy of the Court's review.  However, because the lower courts did not reach the First Amendment question, Justice Sotomayor reluctantly concurred in the denial of certiorari.  


In Baston v. United States (No. 16-5454), Baston was convicted of sex trafficking by force, fraud, or coercion in Florida, Australia, and the United Arab Emirates. The district court ordered Baston to pay restitution in the amount of $78,000, but refused to include in the restitution award $400,000 that the victim earned while prostituting in Australia. In the court's view, the Foreign Commerce Clause did not permit an award of restitution based upon Baston's extraterritorial conduct. The Court of Appeals vacated the restitution order with instructions to increase the award by $400,000 to account for the prostitution in Australia. The appellate court reasoned that whatever the outer bounds of the Foreign Commerce Clause might be, it would have at least the same scope as the Interstate Commerce Clause precedents of the Supreme Court.

Justice Thomas dissented from the denial of certiorari. At a minimum, Justice Thomas indicated that it was time for the Supreme Court to clarify the scope of Congress' power under the Foreign Commerce Clause to regulate extraterritorially. Taken to the limits of its logic, Justice Thomas indicated that the consequences of the Court of Appeals' reasoning were startling. "The Foreign Commerce Clause would permit Congress to regulate any economic activity anywhere in the world, so long as Congress had a rational basis to conclude that the activity has a substantial effect on commerce between this Nation and any other. Congress would be able not only to criminalize prostitution in Australia, but also to regulate working conditions in factories in China, pollution from power-plants in India, or agricultural methods on farms in France."

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