This week, Supreme Court Justice Clarence Thomas signaled his belief that civil asset forfeiture laws have strayed too far from their narrow historical precedent and questioned whether “modern civil-forfeiture statutes can be squared with the Due Process Clause and our nation’s history.”

The news stems from a case, Lisa Olivia Leonard v. Texas, which—like so many forfeiture cases—began along the side of a road.

James Leonard, the petitioner’s son, was stopped for a traffic violation along what Thomas’ statement describes as a “known drug corridor.” Leonard’s vehicle was subjected to a search, which turned up a safe in the trunk.

Officers reported that Leonard and his passenger gave “conflicting stories” as to its contents, though Leonard noted it belonged to his mother, Lisa Leonard. Police executed a search warranted, discovered $201,100 in cash and “a bill of sale for a Pennsylvania home” inside, and seized the funds as alleged drug proceeds.

During the forfeiture proceeding that followed, Lisa Leonard asserted that the money was hers, and that she was an “innocent owner.”

To make an innocent owner defense, Texas law required Leonard to prove that she either did not know about, or reasonably could not have been expected to know about, the alleged offense allowing forfeiture. The trial court rejected her claim, and the Court of Appeals offered her no relief.

Leonard appealed to the Supreme Court, and this week the justices denied certiorari. Thomas concurred with the denial on procedural grounds, but issued a statement roundly critical of modern civil forfeiture practices.

Thomas argued that they permit “egregious and well-chronicled abuses” in which wholly innocent people are coerced into surrendering cash and property, and dragged through costly and lengthy legal processes that offer only long odds of ever recovering what was seized.

How is it possible to strip people of their lawfully obtained private property for allegedly committing a crime without ever proving in criminal court that they committed the alleged crime?

The answer, in short, is that civil forfeiture actions are in rem proceedings, meaning they target property, not people, based on an ancient legal fiction that the inanimate property itself can be guilty of a crime. As Thomas noted:

In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent … 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. [Emphasis added]

Despite these deficiencies, the Court has long upheld civil forfeiture as a law enforcement tool, based primarily on the argument that forfeiture “existed at the time of the founding.”

This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture. Other early statutes also provided for the forfeiture of pirate ships.”

These historical examples are undeniable, but for Thomas, they may not be sufficient to justify the broad reach of modern forfeiture. As he wrote,

I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of the modern practice, for two reasons.

First, historical forfeiture laws were narrower in most respects than modern ones. Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts. These laws were also narrower with respect to the type of property they encompassed …

Second, it is unclear whether courts historically permitted actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. [Emphasis added]

Thomas is correct that forfeiture laws have strayed far beyond their historically limited role. In 1984, Congress ramped up forfeiture for the narrow purpose of targeting the property and ill-gotten gains of criminal kingpins, interstate drug gangs, and other worst-of-the-worst offenders, and in the decades since, it has not been constrained even to this expanded usage.

Today, more than 400 federal laws authorize seizure and forfeiture of cash and property for myriad alleged offenses. Far from seizing pirate ships on the high seas, the most common use of forfeiture today is to seize relatively small amounts of cash on suspicion that the money was involved in a drug deal.

The ballooning scope of forfeiture may ultimately prove to be its undoing. In concluding his statement, Thomas signaled his willingness to hear future cases challenging civil forfeiture: “Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”