Civil Asset Forfeiture

Profitable Penalties Imperil Justice

The Supreme Court should make it clear that state forfeitures are constrained by the Excessive Fines Clause.


Tyson Timbs, an Indiana man desperate for money to support his heroin habit, did exactly what the cops asked him to do, selling them four grams of the drug in two transactions for a total of $385. His reward was a year of home detention, five years of probation, and $1,200 in court-ordered fees.

Adding insult to injury, police seized the 2012 Land Rover that Timbs had bought with $42,000 from his father's life insurance payout. In a case that could lead to limits on the system of legalized theft known as civil asset forfeiture, the Supreme Court is considering whether Timbs can challenge the confiscation of his car as a violation of the Eighth Amendment's ban on "excessive fines."

An Indiana judge rejected the forfeiture on that basis, deeming it "grossly disproportional to the gravity of [Timbs'] offense." A state appeals court agreed, noting that Timbs' car cost four times the maximum fine for his drug felony.

The Indiana Supreme Court reversed that decision. "The United States Supreme Court has never enforced the Excessive Fines Clause against the States," it said, "and we opt not to do so here."

It's true that the Supreme Court, which is hearing oral arguments in Timbs' case today, has never explicitly held that the Excessive Fines Clause, like the rest of the Eighth Amendment and almost all the other guarantees in the Bill of Rights, applies to the states via the 14th Amendment. But it's hard to see why the Court would not reach that conclusion.

As Timbs' lawyers at the Institute for Justice note, concerns about the abuse of fines date back at least as far as the Magna Carta and have been a persistent theme in U.S. constitutional history. The prohibition of excessive fines is therefore "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition," the usual test for whether a right is "incorporated" in the 14th Amendment's Due Process Clause.

Recognizing the problems with the incorporation doctrine's reliance on the slippery and seemingly oxymoronic concept of "substantive due process," the Institute for Justice argues that the 14th Amendment's protection of each citizen's "privileges or immunities" provides "an alternative basis" for applying the Excessive Fines Clause to the states. "Like the right to keep and bear arms," it says, "the right to be free from excessive fines fits comfortably within the original public meaning of the Privileges or Immunities Clause."

Indiana, for its part, only half-heartedly argues that the Excessive Fines Clause does not apply to the states, saying "the better interpretation" is that the clause does not apply to civil forfeitures, which are notionally actions against assets rather than owners, who need not even be charged with a crime to lose their property. Unfortunately for Indiana, the Supreme Court unanimously rejected that argument in 1993, when it ruled that federal civil forfeitures can be constitutionally excessive because they are a form of monetary punishment.

Applying the Excessive Fines Clause to the states therefore should help curtail a racket that lets police "seize property with limited judicial oversight and retain it for their own use," as Justice Clarence Thomas recently described it, noting that civil forfeiture "has led to egregious and well-chronicled abuses." The profiteering is especially blatant in Indiana, where private attorneys pursue civil forfeitures on behalf of the state in exchange for a share of the loot.

What purpose is served by taking away Timbs' car, aside from raising money for mercenary lawyers and greedy law enforcement agencies? "I committed a crime, then I did my time and cleaned up my life," Timbs says. "They are trying to take away one of the few things I own—that I bought with money from my dad. Forfeiture only makes it more challenging for people in my position to clean up and become contributing members of society."

The financial incentives created by forfeiture invite abuse. When punishment is profitable, justice suffers.

© Copyright 2018 by Creators Syndicate Inc.

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  1. desperate for money to support his heroin habit

    Lemme guess – he got the Land Rover so he could score even in bad weather? Seriously we need to stop with these tired addiction tropes. The guy was just a lazy idiot doing things that lazy idiots do and he got caught. You can oppose civil asset forfeiture without making excuses for criminals. (Nevertheless, I have a good feeling about the decision today – so excited!)

    1. I don’t care what he did, for a minor crime taking his truck is overkill and against the intent of the constitution about excessive punishment. In this case the state is fucking retarded and the Supreme Court needs to let them know their laws don’t supercede what the Constitution says.

    2. What were Tyson Timbs’s crimes and who did he victimize?

  2. What about (I just HAD to use that phrase) the forfeitures without due process? You remember, not even accused, let alone convicted, but the sheriff is driving your car.

    1. In that context, I really don’t understand why people don’t exercise their second amendment rights. I understand no one wants to be the example, but if it became a trend that law enforcement folks or attorneys caught enjoying stolen property suddenly exited this life violently, I suspect very few examples would need to be made before civil asset forfeitures became a thing of the past.

      1. You first.

      2. You’re welcome to go visit the sheriff and use your second amendment rights and get back your rare bong collection. Get some video for us while you’re at it.

      3. Right, because previous cop-killings have ever caused cops to re-think their aggressive policing tactics, or caused their supporters to stop and wonder if maybe the murderers martyrs were right.

      4. Your proposed solution is violence? I’d rather we fix the law and impose severe criminal penalties on government officials who step out of line like the officers in this story.

        1. This is a great long term solution, however, there are a few hurdles to overcome, not the least of which is the presumption of many that ‘sheriffs deserve political support’ and the ‘American states’ will not use their powers unjustly. Frankly, a SCOTUS ruling might be the first step, but without a change of mind at both the local and national level, we are not likely to see real consequences for out of line government officials. One over-arching problem, is, as John Stossell has put it, “All our rights are gradually eroded as government gets bigger.” State and local governments have followed Federal governments in racking up deficits, and so ‘need’ the thefts to continue. Peaceful civil disobedience may be the only option we have left that has any hope of actually working on some of these issues, but that may not be until statist violence happens many times first.

  3. Hopefully, the SCOTUS will allow such theft from the accused for a host of good reasons.
    First, it will fill the coffers of the state, local and federal law enforcement agencies that are barren and will afford these people who work for them to find a place to stay instead of living under the local bridge.
    Secondly, it lets all the little people who the boss is. For too long, the unwashed masses have depended upon that racists, homophobic, pro-capitalist and fascist document to protect them, the US Constitution. This decision, if deemed correctly will further erode the unnecessary, outdated and evil document and will open the doors of the progressive, wise and humane door of socialist totalitarianism we all covet. Destroying the people’s rights will only prove to be a wise and beneficent decision for all concerned, especially the ruling elites who know how suppress the hoi poiloi properly.
    Lastly, the little people of this country has too many material good, like money, food, homes, cars, etc. It would be wise to allow The State to own these items so they can be redistributed in a more fair and equitable manner like it was done in the former Soviet Union, contemporary PRC, Cuba, North Korea and Venezuela. We must put all our faith in the enlightened ruling elitist filth if we are ever to have a just, humane and vicious government.

    1. you mean, Sheriff Billy Bob actually DESERVES to be driving my LandRover more than I do, and therefore I must gladly leave him to enjoy the use of MY property at HIS whim?
      If that’s the case, well, then…… if HE has the right to reporpose MY property, why should not I then have the right to repurpose HIS property and, some dark night, stealthily approach HIS residence and take “his” (formerly “my”) property and repurpose it for my own use? What makes THAT pig more equal them THIS pig, myself?

      The ostensible purpose and justification for CAF was originally held forth as a means to end the drug trade by seizing the profits/proceeds therefrom. but in this case, the LandRover was NOT part of any drug trading activity, was not related in any way to profit from that activity. Thus its seizure and coopting had NO effect on the man’s alledged illicit trafficking in contraband. Thus its seizure was NOT consistent with the stated purpose for the system of seizure and conversion.

      1. CAF should ONLY be allowed when, in the course of prosecuting criminal activity, the item is seized as the fruit of or the means to conduct, the ilicit activity. If the kid rode a fifty dollar Huffy bicycle to deliver the sold drugs they cannot seize his $45K LandRover which was NOT used in any way to promote the illicit trade. And then, gummit must always prove, beyond a reasonable doubt, that the alledged illicit trade actually took place, AND that the goods/funds seized WERE in fact a part of or derived directly from the illicit trade or were used to facilitate the alledged illicit trade. Thisbusines sof charging piles of cash, and LandRovers, as criminals is insane…. things cannot be guilty of illicit activity. Prove a human was engaging in such activity AND that there exists a strong and direct connexion between the item and the illicit activity.. THEN and only then can the item be lawfully taken. The sheriff lusting after Charlie’s LandRover, leading to a stink sale then “seizing” the LandRover does not work.

    2. ***** Sarcasm! I’m surprised that this was missed by some.

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  5. In that context, I really don’t understand why people don’t exercise their second amendment rights. I understand no one wants to be the example, but if it became a trend that law enforcement folks or attorneys caught enjoying stolen property suddenly exited this life violently, I suspect very few examples would need to be made before civil asset forfeitures became a thing of the

  6. Gorsuch has a chance to help knock down the #1 cause or Crashes, Banking Panics, Economic Collapse and Depression. Government looting causes money to disappear from where it can expand credit–and be ripped off by looters protected by “law”.

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