Supreme Court Will Decide If Civil Forfeiture Is Unconstitutional, Violates The Eighth Amendment

Forbes – by Nick Sibilla

For the first time in over 20 years, the U.S. Supreme Court has agreed to review the constitutionality of civil forfeiture laws, which allow the government to confiscate cash, cars, and even homes. On Monday, the court granted a cert petition from Tyson Timbs, who was forced to forfeit his $40,000 Land Rover in civil court to the State of Indiana, after he pled guilty to selling less than $200 worth of drugs.

Like too many Americans, Tyson was addicted to opioids, at first taking prescription painkillers before switching to heroin. When Tyson tried to sell undercover officers four grams of heroin, he was arrested in 2013. As punishment, Tyson agreed to serve one year of house arrest and pay $1,200 in court fees. But the state also wanted his Land Rover, which Tyson had bought with life-insurance proceeds after his father died.  

Determined to keep his truck, Tyson argued that forfeiting the Land Rover would violate the Eighth Amendment’s ban on “excessive fines.” A trial judge agreed, and rejected the forfeiture as “grossly disproportional.” Under Indiana law, a felony conviction could trigger a maximum fine of $10,000—less than a quarter of what Tyson’s Land Rover was worth. That decision was upheld by an appellate court.

But in November, the Indiana Supreme Court reversed that decision, and instead ruled that the Constitution’s Excessive Fines Clause provided no protection to Hoosiers. “The Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle,” the court ruled, “because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment.”

After the Fourteenth Amendment was ratified, most of the protections guaranteed by the Bill of Rights were steadily “incorporated” against the states, including the Eighth Amendment’s ban on “excessive bail” and “cruel and unusual punishment.” With this decision, the Indiana Supreme Court found itself at odds with 14 other state high courts and two federal appellate circuit courts, which had all ruled that the Excessive Fines Clause does, in fact, apply to the states.

Deprived of both his constitutional rights and his truck, it’s been hard to “keep my life on track,” Tyson said. “Without my car, it is incredibly difficult to do all the things the government wants me to do to stay clean, like visit my probation officer, go to AA, and keep my job,” he noted. “Fighting to stay clean is hard enough. I’ve served out my punishment, but now the government is going beyond seeking justice. Forfeiture only makes it more challenging for people in my position to clean up and become contributing members of society.”

In January, Tyson and the Institute for Justice, a public interest law firm, filed a cert petition urging the U.S. Supreme Court to take the case and overturn the Indiana Supreme Court’s ruling. Their efforts earned support from all across the political spectrum, with the Southern Poverty Law Center, the Cato Institute, the U.S. Chamber of Commerce, and the National Association for Criminal Defense Lawyers, all filing briefs in support of Tyson and IJ’s petition.

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.”

Once a legal backwater limited to piracy and customs cases, civil forfeiture has robbed tens of thousands of innocent Americans. Meaningful safeguards are few and far between. Today, just three states have abolished civil forfeiture, while only 15 states generally require a criminal conviction to forfeit property. Incredibly, in more than 40 states, once property has been forfeited, police and prosecutors can take a cut of the proceeds.

A report by the Institute for Justice found that annual forfeiture revenue doubled across 14 states between 2002 and 2013, netting law enforcement hundreds of millions of dollars. But those programs are utterly dwarfed by the federal government’s confiscations. From 2001 to 2014, the Justice Department and the Treasury Department’s forfeiture funds took in almost $29 billion.

“This direct financial incentive gives the government a perverse incentive to abuse this power, which is exactly what is happening in Tyson’s case with this excessive fine,” said IJ Attorney Sam Gedge. “Unless we have federal protections against excessive fines, no one’s property is safe.”

Timbs v. Indiana should be the biggest civil forfeiture case heard by the U.S. Supreme Court in at least two decades. Although the court had gone quiet on the issue for years, a recent string of opinions seem to indicate that many justices want to police this police power

Last year, Justice Clarence Thomas wrote a scathing concurrence against civil forfeiture when the Supreme Court declined to hear the case of Lisa Olivia Leonard, who had over $200,000 in cash confiscated from a traffic stop in Texas. “This system,” Thomas wrote, “where police can seize property with limited judicial oversight and retain it for their own use— has led to egregious and well-chronicled abuses.”

Thomas further criticized how “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” who in turn are “more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

Later that year, the Supreme Court struck down a Colorado law that bore a striking resemblance to civil forfeiture. Under the state’s Exoneration Act, criminal defendants whose convictions had been overturned were forced to prove their innocence in civil court before they could recover any court costs, fees or restitution they paid. Writing for the majority in Nelson v. Colorado, Justice Ruth Bader Ginsburg ruled that “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

And in April, Justice Neil Gorsuch called out civil forfeiture when he joined the majority n Sessions v. Dimaya, which ruled against the Justice Department for relying on an “unconstitutionally vague” deportation law. 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.”

With Timbs v. Indiana, the Supreme Court has a new opportunity to roll back unduly harsh civil penalties. A victory for Tyson would vindicate the constitutional rights of all Americans from the government’s grasping hand.

https://www.forbes.com/sites/nicksibilla/2018/06/19/supreme-court-will-decide-if-civil-forfeiture-is-unconstitutional-violates-the-eighth-amendment/#32705ef17165