Is preponderance good enough? Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required. Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122. So does Justice Thomas think the Court should take this case up? No:
Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. 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.So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.