When Is a Civil Forfeiture Based on Drug Offenses Excessive? Always.

The question of proportionality assumes that punishment is appropriate for peaceful conduct that violates no one's rights.

The Indiana Supreme Court yesterday concluded that civil forfeiture of a Land Rover "worth at least $35,000" that was used to sell small amounts of heroin violated the Eighth Amendment's prohibition of "excessive fines." As Reason's Billy Binion noted, the decision suggests a promising new avenue for constitutional challenges to civil forfeiture of allegedly crime-tainted property. But the court's analysis in Indiana v. Timbs also shows how subjective the question of proportionality can be in such cases and the extent to which that judgment depends on dubious assertions rooted in the morally bankrupt logic of drug prohibition.

In 2013, Tyson Timbs was charged with two counts of dealing in a controlled substance, a Class B felony punishable by six to 20 years in prison and a maximum fine of $10,000, based on two heroin sales to an undercover officer in which he exchanged a total of four grams for $385. He pleaded guilty to one count and received a six-year sentence, including a year of home confinement and five years of probation. He also paid $1,023 in costs and fees. In addition to those penalties, police seized the Land Rover, which Timbs had purchased with the proceeds from his father's life insurance policy. He used the remaining insurance money, about $30,000, to buy heroin for his own use.

After Timbs challenged the forfeiture, his case, which was championed by the Institute for Justice, made its way up and down the legal system, including three decisions by the Indiana Supreme Court and a landmark 2019 ruling in which the U.S. Supreme Court held that the Excessive Fines Clause applies to the states via the 14th Amendment's guarantee of due process. The Court had previously ruled that the Excessive Fines Clause constrains civil forfeiture, even though that process is officially "remedial," because confiscating property tied to criminal activity is at least partly punitive.

In its latest decision, the Indiana Supreme Court rejects the trial court's conclusion that Timbs' offense was "victimless." Although he "didn't harm a specific victim," it avers, "distributing or possessing even small amounts of drugs threatens society." The court nevertheless agrees that the seizure of Timbs' Land Rover was "grossly disproportional" based on "the totality of the circumstances."

While Timbs' culpability in the heroin sales was undisputed, the court says, "the gravity of the underlying offenses" was "minimal." It notes that Timbs received the minimum sentence allowed by law, that he was struggling with addiction, that he agreed to sell heroin only to pay for his own habit, and that "he dealt drugs to an undercover officer" rather than "someone who would use them." In assessing the proportionality of the forfeiture, the court also deemed it relevant that Timbs was poor, that the Land Rover was his only significant asset, that the car was "essential to him reintegrating into society" because it enabled him to "maintain employment and seek treatment," and that "the vehicle's value was three-and-a-half times the maximum fine for the underlying offense."

The state, by contrast, argued that seizing the Land Rover was plainly proportional given Timbs' history of drug law violations, which extended far beyond the heroin sale to which he pleaded guilty. As Justice Geoffrey Slaughter notes in a concurring opinion, Timbs made "dozens of lengthy trips to buy heroin to feed his drug habit" before escalating to heroin distribution.

"In just four months' time," Slaughter writes, "Timbs poured more than $30,000 into Indiana's heroin trade. After [he committed] $30,000 of 'wrongdoing,' the State seized the $35,000 vehicle that was the instrumentality of his offenses. Given the near parity of these sums—the extent of Timbs's criminal activity versus the value of his vehicle—another court might reasonably conclude that forfeiting this instrumentality was neither harsh nor disproportionate at all, much less grossly so."

In the state's view, Timbs was responsible for a "staggering volume" of "extremely serious" criminal conduct. "The State contends that Timbs was on a path to engaging in increasingly dangerous criminal activity to fund his addiction," the majority notes. "For these criminal activities, criminal sentencing laws could have imposed hundreds of thousands of dollars in fines and placed him in prison for the rest of his life."

Slaughter concurred in the judgment because he viewed the majority's analysis as a "plausible and defensible" application of the "excessiveness test" that the court established the last time it considered Timbs' case. But he warns that the test invites subjective judgments that may lead to strikingly different outcomes in cases with similar facts: "By crafting a test that relies so heavily on a judge's subjective sensibilities, the Court has removed the inquiry almost entirely from a judge's core area of expertise—objective analysis—and placed it instead where judges have no special insight: where only highly subjective, value-laden judgments prevail. By doing so, we have created a test largely insulated from principled debate and review."

Dissenting Justice Mark Massa goes further, rejecting the majority's conclusion about the gravity of Timbs' offense. "The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation," he writes. "But I part ways with the Court's holding that it was grossly so. Such a conclusion can only be sustained by finding the severity of the underlying felony to be 'minimal,' as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity. No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street."

Despite their differences on the question of exactly how grave Timbs' offenses were, the majority, Slaughter, and Massa all agree that it was appropriate to punish him for what he did, because (as the majority put it) "distributing or possessing even small amounts of drugs threatens society." But if anyone was victimized here, it was Timbs, whom "an acquaintance" tricked into selling heroin to a police officer. The sole purpose of those transactions was to implicate Timbs in "crimes" for which he could then be punished—crimes that "didn't harm a specific victim," as the majority notes. The dispute about the forfeiture of Timbs' car looks like mere quibbling compared to this egregious abuse of state power.

The justices emphasize that heroin use causes harm. But Timbs is no more responsible for that harm than a liquor retailer is responsible for the damage caused by alcohol abuse. According to the Centers for Disease Control and Prevention, alcohol causes something like 88,000 deaths a year in the United States, compared to about 14,000 deaths involving heroin in 2019. The only reason that Timbs, unlike the folks at Total Wine & More, was arrested and punished is that politicians have drawn a morally indefensible distinction between these two intoxicants.

Once you ignore that reality, the question of proportionality is bound to generate the sort of disagreement that Slaughter predicts. The government can boost prices by banning drugs, then cite the exorbitant sums spent by drug users as a measure of the injury they supposedly have inflicted on "society." It can make drugs more dangerous by forcing users to rely on a black market in which purity and potency are unpredictable, then cite the resulting death toll as a rationale for coming down hard on anyone who possesses or sells those substances. It can prescribe draconian penalties for the crimes it invented, then cite those penalties to justify civil forfeitures like this one.

Consider the case of Kevin McBride, a Tucson handyman whose $15,000 Jeep was seized last year because his girlfriend allegedly used it for a $25 marijuana sale to an undercover cop. Unlike Timbs but like many victims of civil forfeiture, McBride was not at all culpable in the offense that the cops cited to justify taking his property, which helps explain why prosecutors quickly agreed to return the Jeep after the Goldwater Institute threatened to sue. But suppose that McBride himself had sold the pot. Although you might think the forfeiture still would be clearly disproportionate, that is not obvious given the criminal penalties that Arizona legislators had deemed appropriate for this sort of offense.

"If the forfeiture of a $15,000 Jeep over $25 worth of marijuana is not excessive," Goldwater Institute senior attorney Matt Miller said at the time, "then it is difficult to imagine what would be." Yet under Arizona law, selling less than two pounds of marijuana was punishable by up to three years in prison and a maximum fine of $150,000. In other words, the maximum fine was 10 times the value of McBride's Jeep, which suggests such a forfeiture would not be so disproportionate after all. Arizona legislators evidently thought that exchanging even a small amount of marijuana for a small amount of money was a pretty serious crime against society.

As a result of a ballot initiative that voters approved last November, selling marijuana for recreational use is no longer any sort of crime under Arizona law, provided the seller has obtained the necessary license and follows the state's regulations. That sudden transformation underscores the utterly arbitrary nature of drug prohibition, which has nothing to do with real injuries inflicted on identifiable victims. When the government proscribes peaceful conduct that violates no one's rights, any punishment is excessive.