Civil asset forfeiture is one thing that can bring together the left and right. I’ve documented the few times states have addressed this issue and it’s made me happy that the Supreme Court will address this issue next term. Reason explained the case:

The case is Timbs v. Indiana. It arose in 2013 when a man named Tyson Timbs was arrested on drug charges and sentenced to one year on home detention and five years on probation. A few months after his arrest, the state of Indiana also moved to seize Timbs’ brand new Land Rover LR2, a vehicle worth around $40,000. A state trial court rejected that civil asset forfeiture effort, however, on the grounds that it would be “grossly disproportionate to the gravity of [Timbs’] offense” and therefore in violation of the Eighth Amendment to the U.S. Constitution, which forbids the imposition of “excessive fines.”

The state’s forfeiture effort clearly qualifies as excessive. Timbs’ original crime carried a maximum financial penalty of just $10,000. And as the trial court observed, “a forfeiture of approximately four (4) times the maximum monetary fine is disproportional.” The trial court was right to deem the state’s actions unconstitutional.

An appeals court in Indiana agreed with Timbs and the trial judge. From The New York Times:

In dissent, Judge Michael P. Barnes wrote that civil forfeiture laws can be abused but that Mr. Timbs should lose the vehicle.

“I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases,” Judge Barnes wrote. “Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.”

But the Indiana Supreme Court said no way since “[T]he Supreme Court has never held that States are subject to the Excessive Fines Clause” and the “Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment.”

Lawyers at the Institute for Justice decided to help out Timbs and filed a cert petition urging the U.S. Supreme Court to take the case and overturn the Indiana Supreme Court’s ruling. From Forbes:

With the petition now granted, the U.S. Supreme Court will decide once and for all “whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.”

“This case is about more than just a truck,” said Wesley Hottot, an attorney with the Institute for Justice. “The Excessive Fines Clause is a critical check on the government’s power to punish people and take their property. Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

Damon Root at Reason said the decision at the Supreme Court should be a “no-brainer” since the justices “have been applying, or incorporating, the various provisions contained in the Bill of Rights against the states under the Due Process Clause of the 14th Amendment, which forbids state governments from depriving any person of life, liberty, or property, without due process of law” since the 19th century.

Justice Thomas Wrote Against the Practice

Justice Clarence Thomas decided to speak up against civil asset forfeiture in March 2017 after the Supreme Court decided not “to hear a case filed by a Texas woman fighting for the return of over $200,000 in cash that the police seized from her family.” Thomas wrote:

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. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. Stillman, Taken, The New Yorker, Aug. 12 & 19, 2013, pp. 54-56. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. Id., at 49.

Thomas was 100% correct when he wrote that the “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.” These people mostly use cash and will more likely “suffer in their daily lives while they litigate for the return of a critical item of property such as a car or a home.”

Thomas explained that the Supreme Court “justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding.” The English had a law that “provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.” This then “took hold in the United States by the First Congress,” which decided to pass “laws subjecting ships and cargos involved in customs offenses to forfeiture.” Thomas reminded us that these “statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime” and since “these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally.”

Why does all that matter? Because Thomas doesn’t believe the previous practice can hold up “as a constitutional matter” today. First off, those “historical forfeiture laws were narrower in most respects than modern ones.” As you can see from the previous paragraph, the cases mostly were about piracy. The courts pretty much had to proceed “in rem in those cases” due to “necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts.” They were also narrow “with respect to the type of property they encompassed” such as targeting “only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods).”

Thomas also found it “unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects.” He wrote that some of those “early cases suggested that forfeiture actions were in the nature of criminal proceedings.” This part stuck out to me:

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. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt.”

Supreme Court has Acted on Laws Similar to Civil Asset Forfeiture

In May 2017, the Supreme Court did strike down the Exoneration Act in Colorado that was very similar to civil asset forfeiture. The law required people who had convictions overturned prove their innocence in civil court in order for them to “recover any court, fees or restitution they paid.” Forbes reported:

Fortunately, the U.S. Supreme Court, in a 7-1 ruling, ruled Colorado’s law was unconstitutional. Writing for the majority, Justice Ruth Bader Ginsburg held that “the Exoneration Act’s scheme does not comport with the Fourteenth Amendment’s guarantee of due process.” Nelson and Madden are “entitled to be presumed innocent” and “should not be saddled with any proof burden” to regain what is rightfully theirs.

Ginsburg forcefully rejected Colorado’s argument that “[t]he presumption of innocence applies only at criminal trials,” and not to civil claims, as under the Exoneration Act: “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

This past April, Justice Neil Gorsuch denounced civil asset forfeiture when he became the deciding vote in Sessions v. Dimya and “ruled against the Justice Department for relying on an ‘unconstitutionally vague’ deportation law.” From Forbes:

Deportation is a civil, not criminal, proceeding, but because it is “a particularly severe penalty,” the Supreme Court held that deportation should be scrutinized under a more stringent standard of review.

Gorsuch, however, rejected the notion that deportation should be singled out for special treatment apart from other civil proceedings. Writing in a separate concurrence, he asked, “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

“If the severity of the consequences counts when deciding the standard of review,” he wrote, “shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes?”

Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes— and often harsher than the punishment for felonies. And not only are “punitive civil sanctions…rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct.”