Erin Schaff/The New York Times/Redux
Supreme Court Tackles Fines

High court confirms that civil asset forfeiture can be an “excessive fine”

Advocates have long railed against civil asset forfeiture—a practice that allows law enforcement to seize property and cash it believes was used in the commission of a crime, even if the person it belongs to is later found innocent—with such diverse organizations as the ACLU and the Heritage Foundation calling the policing practice “abusive,” and the Libertarian Party calling it “legalized theft.”ACLU, “Asset Forfeiture Abuse,” https://perma.cc/NE6U-C9DZ; Jason Snead and Elizabeth Slattery, “The Supreme Court Signals It May Rein in Abusive Property Seizures,” Heritage Foundation, November 30, 2018, https://perma.cc/96X4-ECJ3; and Libertarian Party, “Civil Asset Forfeiture Is Legalized Theft by Government,” https://perma.cc/65Y3-S8HT. The Charles Koch Institute has also called for civil asset forfeiture reform, saying it is a “worrisome practice [that] allows police officers to seize a person’s property even if they didn’t commit a crime.” Charles Koch Institute, “Civil Asset Forfeiture,” https://perma.cc/4K82-Z6GR.Black communities have borne the brunt of the practice, with a 2019 news investigation in South Carolina revealing that 65 percent of people whose property was seized by police in Greenville from 2014 to 2016 were Black men, and a 2015 ACLU report finding that 71 percent of Philadelphians who had property seized between 2011 and 2013 were Black.For Greenville, see Nathaniel Cary and Mike Ellis, “65% of Cash Seized by SC Police Comes from Black Men. Experts Blame Racism,” Greenville News, January 27, 2019, updated January 28, 2019, https://www.greenvilleonline.com/story/news/taken/2019/01/27/south-carolina-racism-blamed-civil-forfeiture-black-men-taken-exclusive-investigation/2459039002/. Also see Greenville news, “TAKEN,” https://www.greenvilleonline.com/news/taken/; William Ramsey, “What's in the TAKEN Civil Forfeiture Investigation: Table of Contents,” Greenville News, January 27, 2019, https://www.greenvilleonline.com/story/news/taken/2019/01/27/guide-taken-investigative-series-greenville-news-journalism/2638405002/.The Greenville News investigation sparked legislative action to reform asset forfeiture practices in South Carolina. Nathaniel Cary, “Spurred by TAKEN Series, South Carolina Legislators Seek to Reform Civil Forfeiture,” Greenville News, February 7, 2019, https://www.greenvilleonline.com/story/news/taken/2019/02/07/sc-civil-forfeiture-greenville-news-gold-standard-reforms/2794115002/; and South Carolina HB 3968 (2019), https://perma.cc/ND9U-9TEC. Although the bill ultimately stalled in the legislature, a circuit court judge ruled in August that South Carolina’s civil forfeiture laws were unconstitutional. South Carolina v. Twenty Thousand Seven Hundred Seventy-one Dollars and Travis Lee Green, No. 2017-CP-07411 (15th Judicial Circuit Court of Common Pleas, August 28, 2019), https://perma.cc/3J99-4WD6. In Philadelphia, which reached a $3 million settlement in a class action case over improper asset forfeitures late in 2019, 71 percent of those who have had property or cash seized by police were Black. ACLU of Pennsylvania, Guilty Property: How Law Enforcement Takes $1 Million in Cash from Innocent Philadelphians Every Year — and Gets Away with It (Philadelphia, PA: ACLU of Pennsylvania, 2015), https://perma.cc/QY69-K9R4; and Sourovelis v. City of Philadelphia, No. 14-04687-ER (E.D. Pa.), https://perma.cc/MD7V-ECWU.Black Lives Matter has called for an end to the practice.Black Lives Matter, “Campaign Zero: End For-Profit Policing,” https://perma.cc/Y2R8-ZL6E. Also see Staff, “Could Ending Asset Forfeiture Be a First Step Towards Reparations?” Filter, June 19, 2019, https://perma.cc/MHP7-ZVZ7.

But in February, the Supreme Court handed people battling law enforcement over property seized by police a win when it held that the excessive fines clause contained in the Eighth Amendment applies to the states as well as the federal government.Timbs v. Indiana, 586 U.S. ___ (2019).

In 2015, Tyson Timbs pleaded guilty to dealing in a controlled substance and conspiracy to commit theft.Indiana v. Timbs and a 2012 Land Rover LR2, No. 27A04-1511-MI-1976 (Indiana Ct. App. October 20, 2016), 2-3, https://perma.cc/7YN3-EY57.At the time of his 2013 arrest, Indiana State Police also seized his $42,000 Land Rover.Ibid., 3-4.The government has the power to take property like Timbs’s vehicle through a process called in rem (“against the thing itself”) forfeiture, a type of civil action that has become inextricably linked with criminal law in the United States.Note, “How Crime Pays: The Unconstitutionality of Modern Civil Asset Forfeiture as a Tool of Criminal Law Enforcement,” Harvard Law Review 131, no. 8 (2018), 2387-2408, https://perma.cc/KGY8-6B7Z.Even if a person is not convicted of a crime, assets that the police believe are involved in the commission of the crime can be seized and forfeited to the government through a civil court action.Timbs, 586 U.S. at ___.The maximum statutory fine that Timbs could have been required to pay as a consequence of his conviction was $10,000—less than a quarter of the value of the Land Rover; in fact, he paid only $1,200 in fees and court costs.Timbs, 586 U.S. at ___.

Timbs argued that the seizure constituted an excessive fine.Indiana v. Timbs and a 2012 Land Rover, 2016, at 4Under the Eighth Amendment, fines must be proportional to the severity of the offense committed. Indiana countered that the Eighth Amendment’s excessive fines clause applied only to the federal government—not to states—so the vehicle could be seized and forfeited no matter what its value.Timbs, 586 U.S. at ___; and Nick Sibilla, “Indiana Supreme Court Slams ‘Oppressive’ Civil Forfeiture Laws in Seized Land Rover Case,” Forbes, November 1, 2019, https://perma.cc/5U8Q-C2W7.The Supreme Court disagreed, stating in a unanimous opinion that the clause does, in fact, limit the power of the states as well as the federal government.Timbs, 586 U.S. at ___.(The Court didn’t, however, reach the question whether the seizure of Timbs’s Land Rover rose to the level of an excessive fine, but rather returned the case to Indiana courts to determine that issue. In October, the Indiana Supreme Court in turn sent the case back to the trial court for a ruling on whether the seizure of the vehicle was a “grossly disproportional” fine.)Indiana v. Timbs, No. 27S04-1702-MI-70 (Ind. 2019), https://perma.cc/5A4R-V7N6.

Timbs was a blow to police: in 2018 alone, more than a billion dollars in seized assets were deposited to the U.S. Department of Justice’s Asset Forfeiture Fund, which pays for some law enforcement expenses and equipment.U.S. Department of Justice, “FY2018 Asset Forfeiture Fund Reports to Congress: Total Net Deposits to the Fund by State of Deposit,” https://perma.cc/RKG3-CZ2H. For a list of authorized uses of the fund, see 28 U.S.C. § 524(c), https://perma.cc/Y2RQ-SAWN; and German Lopez, “Why the US Supreme Court’s New Ruling on Excessive Fines is a Big Deal,” February 20, 2019, https://perma.cc/KE9N-EP89.But the ruling was hailed by groups all along the political spectrum.See Scott Bullock and Nick Sibilla, “The Supreme Court Resuscitates the Eighth Amendment,” Atlantic, March 13, 2019, https://perma.cc/5HGY-U39D; Jason Snead and Elizabeth Slattery, “Supreme Court’s 9–0 Ruling Protects Americans Against Excessive Fines,” Heritage Foundation, February 21, 2019, https://perma.cc/GV74-BXGK; ACLU, “ACLU Statement on Supreme Court Ruling in Timbs v. Indiana,” press release (Washington, DC: ACLU, February 20, 2019), https://perma.cc/U6VY-EJZR; and Brennan Center for Justice, “Court Case: Timbs v. Indiana,” February 20, 2019, https://perma.cc/7JBK-5GRF.Public opinion polls have found that a vast majority of Americans oppose civil asset forfeiture.Nick Sibilla, “New Poll: 76% of Americans More Likely to Vote for Candidates Who Back Forfeiture Reform,” press release (Washington, DC: Institute for Justice, October 15, 2018), https://perma.cc/QLB7-NC39; and Emily Ekins, “84% of Americans Oppose Civil Asset Forfeiture,” Cato Institute, December 13, 2016, https://perma.cc/4FPE-JNEF.

States will need to sort out the impact of Timbs on their asset forfeiture laws and practices, which vary widely. Under pressure from advocates and courts, many had begun that process even before the ruling, with varied effect. In July, the governor of Hawaii vetoed legislation that would have significantly limited the state’s power to use civil in rem actions, leaving intact a system that has already been criticized for mismanagement.Hawaii HB 748 (2019), https://perma.cc/Y8MY-46N4. See also Daniel Nichanian, “Hawaii Governor Sinks Criminal Justice Reforms, Allows Pot Decriminalization,” The Appeal, July 18, 2019, https://perma.cc/MZ53-4RBT; and Stewart Yerton, “Auditor: Hawaii AG Mismanaged Asset Seizure Program,” Honolulu Civil Beat, June 14, 2018, https://perma.cc/5LLC-Z9GT.In Michigan, however, bipartisan efforts resulted in significant reforms in May that virtually eliminated the state’s power to seize assets without an associated conviction.Michigan SB 2 (2019), https://perma.cc/TQM4-T67Y; Michigan HB 4001 (2019), https://perma.cc/2JX8-G8NZ; and Michigan HB 4002 (2019), https://perma.cc/7U5G-8NJT. See also Nick Manes, “Whitmer Signs Bipartisan Civil Asset Forfeiture Bills,” Michigan Advance, May 9, 2019, https://perma.cc/73ZN-XYUK.