Civil Asset Forfeiture

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.

NEXT: Feds Restore $929 Million in Funds for California’s Billion-Dollar Bullet Train Boondoggle

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28 responses to “When Is a Civil Forfeiture Based on Drug Offenses Excessive? Always.

  1. “alcohol causes something like 88,000 deaths a year in the United States, compared to about 14,000 deaths involving heroin ”

    Some serious cherry picking there. Total deaths are at least 70,000 for drugs that are illegal currently.

    1. “Some serious cherry picking there.”

      He didn’t include all drugs. Just for heroin. And the recent spike in heroin overdoses can be at least partly contributed to the feds crack-down on legal, synthetic opiates, which, when difficult to get, send addicts to the black market.

      1. So for an apples to apples he should have just used gin instead of all alcohol?

        1. Well, alcohol IS alcohol. One can die from overdoses from all kinds of different illegal drugs. Opiates are not the only dangerous drugs out there. But yeah, I wouldn’t have picked that number, either.

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        2. So you don’t think that the journalist should make the exact same argument that politicians make? Because all alcohol is legal. Heroin a specific drug is illegal. They’re comparing one illegal thing to eat an entire group of legal things. That’s the point. Because we’re talking about heroin. Not alcohol. If we were talking about someone being arrested for selling gin then you have a point. But we’re not.

          1. The distinction between different types of alcohol is arbitrary. Sullum probably should have said “ethanol” which is the specific chemical present in all alcoholic drinks. Rumors that this spirit or that spirit produces different effects are just that, rumors, like the rumor that drinking vinegar will help you pass a drug test. It’s no surprise when it comes to drugs, people who take a lot of them believe and repeat a lot of stupid shit.

    2. Yes because heroin itself is literally all drugs that are illegal. There are no other drugs that are illegal. So all illegal drug deaths are from heroin right? Oh wait no there are other illegal drugs. And those deaths aren’t attributed to heroin because they weren’t caused by heroin only heroin causes heroin deaths. When talking about someone being arrested for selling heroin you don’t need to compare other drugs to alcohol. Because the person wasn’t arrested for other trucks. They were arrested for heroin!

    3. A Florida man was wrongfully jailed in 2017 after a field test confused his donut glaze with meth. A 2018 drug seizure in North Carolina originally touted as “$2 million worth of ‘the deadly opioid fentanyl'” turned out to be white sugar…………CLICK HERE.

    4. I think, along with President Obama, that the issue involves mental health, not just throwing people in jail, or saying that alcohol and/or drugs are bad for everyone………………..CLICK HERE.

    5. One legal drug compared to one illegal drug. Doesn’t seem too unreasonable. In any case, it’s kind of a distraction and irrelevant to the argument against criminalizing drug possession.

  2. Here in the People’s Republic of NJ, we legalized weed. The Team D Governor, the Team D Senate, and the Team D Assembly cannot figure out how to implement this (licensing, etc). Did I mention the Team D supermajority in the Legislature?

    They are all utterly incompetent.

    As for seizures, the People’s Republic is pretty good at that, too. And we have raised corruption to an art form.

    1. I will waive my usual consulting fee for this one case; you implement it by allow sales and use limited only by the seller and user needing to be over the age of consent in the people’s republic. No extra taxes, no regulations, no nothing but an age check.

    2. Marijuana is also legal here in Illinois but it might as well not be. You have to pay something like five times the price that you would on the black market to buy it legally. There literally is no purpose to it being legal in Illinois.

      1. same happened with booze in WA State

    3. …and notice this is worst in the ‘Original colonies-‘ States…in the North

  3. the justices batting around types of crimes to apply types of forfeiture is goalpost move on troll levels.

  4. Sooner or later, some badged jackass doing a civil forfeiture grab, or some theft-loving government attorney arguing to keep a citizen’s money or property, or some black-robed judge with no judgment allowing this government theft to happen is going to rub up against a citizen who – whoops – unexpectedly exercises a right of private action against those who have wronged him and from whose depredations he can receive no respite or recompense. And then there’s going to be all sorts of tut-tutting and navel gazing and pontificating and philosophizing and prating about a reaction to an action that should never have been initiated in the first place.

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  6. I place the blame on the legislature and their electorates. Elect garbage officials, get garbage laws.

    1. False. cops work for the Courts not the Legislature.

      Maybe in your Communust nation thats how it is…

      1. Who banned weed and didn’t ban government nabbing people’s assets without conviction?

        1. The number 1 group funding anti-marijuana efforts at the state level is often a law enforcement group. They have asserted a ton of power of lawmakers with fantastical tales of violence and suffering because of weed. The lawmakers often treat them as the leading authority despite their conflict of interest.

  7. All the other crimes that the police want to bring up… have they charged and tried him for those crimes? Because if they have habeas corpus applies, if they haven’t they need to prove those charges and then charge him with those crimes. Otherwise they don’t count. They do realize that when you’re punishing someone for a crime you can only punish them for that specific crime. You don’t get to bring in other crimes that either you’ve already punished someone for or you have not yet proven. You don’t get to steal someone’s car because they may have done other things before that they either were punished for already or you haven’t proven. If $10,000 is the max you don’t get $10,001.

  8. This hinges on the definition of Due Process.

    That presumes thru Government.

    Seizure is un Constitutional and not with Due Process bc cops are not Government.

    Persons cannoot be deprived of Property without Due Process.

    It must be heard in a Court. Not cops holding trial in the streets.

    The reason cops must bring such to Court is that they are Un Constitutional.

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  10. The defendant was “poor,” but he had a 35k car? Yeah, he only sold to support his habit, for sure.

    1. According to the article he bought the car and the heroin with life insurance proceeds.

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