Last month, nine highly respected and exceedingly qualified jurists did what those in the legal profession are so frustratingly apt to do: They answered exactly the limited and obvious question presented to them, and then refused to budge one inch beyond that question.
The question was presented in Timbs v. Indiana, the jurists were the nine justices of the Supreme Court, and the answer was that the Eighth Amendment’s excessive fines clause is an incorporated protection applicable to the states. The narrow ruling is a fairly unremarkable development, as all 50 states already have some constitutional provision relating to the excessiveness or proportionality of fines.
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The reason this case received so much attention is that it involved asset forfeiture. “Asset forfeiture” is one of those terms that the legal system has produced that sounds both authoritative and ominous but really just means “the government taking your stuff.” It’s a practice rooted in maritime and customs law, when property found on foreign vessels was expropriated by the United States, as the owners were often far beyond the reach of our court system.
With minor exceptions, that was the extent of the practice for hundreds of years, until the 1970s and ’80s, when Congress authorized forfeiture of property connected to drug crimes and further authorized law enforcement agencies that conduct forfeitures to keep the proceeds for themselves, rather than send the money to the general fund.
In the years since, the use of asset forfeiture has exploded at the state and federal levels, amounting to billions taken each year. Property owners across the country were suddenly at risk of having cars, cash, and other personal property seized and “forfeited” (meaning taken) by the government. And these property owners are often never charged, let alone convicted of a crime. Many states have the barest of protections for property owners, allowing property to be taken when there is a mere suspicion that it might be connected to a crime. That suspicion is rarely tested before a neutral arbiter.
Once the government has seized someone’s property, the burden is usually on that person to come to court and attempt to prove their property innocent of any wrongdoing. Not only is that complicated and often impossible, but it requires retaining legal counsel or navigating the system on one’s own. Many simply give up, especially when the amount of money or value of the property taken is small.
To be clear, criminal asset forfeiture is an important tool for law enforcement. When the government prevails and convicts someone of a crime, it should be allowed to divest the convicted person from the fruits of their criminal behavior. But when the government is in the business of taking property from people who are never charged or convicted, constitutional alarm bells should go off.
In the case of Timbs, the individual in question actually was convicted of a crime. Tyson Timbs pleaded guilty in Indiana to dealing in a controlled substance and conspiracy to commit theft. The problem is that the state of Indiana sought to forfeit his $42,000 Land Rover SUV, the value of which far exceeded the maximum possible monetary fine that Timbs could have been required to pay for the offenses to which he pleaded guilty. That, as two courts in Indiana found, was grossly disproportionate to the gravity of his offense.
The Supreme Court didn’t reach an opinion on the proportionality of this specific forfeiture. It merely found that the Eighth Amendment’s prohibition on excessive fines is applicable to the states. Timbs’ case will now go back to state court to again determine whether or not the forfeiture is proportionate. And that is the moral behind Timbs as a whole.
The states now must act. State lawmakers must enact statutory protections for their constituents and property owners. They must ensure that asset forfeitures are maintained (but proportional) for convicted offenders, while innocent citizens are not at risk of having their property taken by the government. They must act before being having the decision taken from them, either by investigation or another court case.
We’ve already seen it happen this year. In South Carolina, the Greenville News spent two years analyzing every civil asset forfeiture case in the state, and found forfeitures totaled $17 million between 2014 and 2016. A fifth of people who had property taken in that state were never charged with a crime, and about the same number were charged but never convicted. Half the time that a forfeiture was conducted, it was for property or cash totaling less than $1,000. And the Greenville News found significant racial disparities among those who had property taken by the government in South Carolina.
The investigation prompted reform. Two weeks later, more than 80 state legislators in South Carolina joined together to introduce legislation that would bar asset forfeitures in civil cases, limiting forfeitures only to individuals who have been convicted of a crime, and putting the burden of proof on the state to finalize forfeitures.
These common sense due process protections should now be enacted in other states now that Timbs has opened the door to reform. It shouldn’t require more investigations into asset forfeiture abuse and more Supreme Court interventions to force sweeping changes in how the government takes property away from its citizens.
Jenna Moll is deputy director for the Justice Action Network.
