Keeping Cops’ Hands Out of Your Pockets
The U.S. Supreme Court recently agreed to rule on a case that could have a major impact on civil liberties and whether civil asset forfeiture can continue to serve as low hanging fruit for bureaucratic interests run amok.
Timbs v. Indiana involves a man whose $42,000 Land Rover was confiscated via civil asset forfeiture. Attorneys from the libertarian public-interest law firm, Institute for Justice, don’t deny their client Tyson Timbs was convicted of selling $385 worth of heroin in two transactions and that his vehicle was used in the sale.
What they do contest is that the confiscation of the Land Rover (purchased with a payment from a life insurance policy, not drug money) was unconstitutional under the Excessive Fines Clause of the 8th Amendment.
How is that? Due to a plea bargain, Timbs was sentenced to one year of house arrest and five years of probation. He was also assessed a total of $1,200 in fees and fines. The offense carries a maximum fine of $10,000. Hence, Timbs’ attorneys assert the confiscation of a $42,000 car exceeds what he was liable for in the first place.
The Indiana Supreme Court didn’t rule whether the forfeiture was excessive. Instead, it ruled that the state wasn’t subject to the Excessive Fines Clause, and that it is a matter for the U.S. Supreme Court to determine. Fourteen other states already adhere to the Excessive Fines Clause, but Indiana and three others do not, according to the ABA Journal.
Virtually every civil rights organization supports Timbs on the merits of this case. Furthermore, there are historic undertones that prompted the Constitutional Accountability Center to file a friend-of-the-court brief requesting that U.S. Supreme Court hear this case.
That organization points to the early Jim Crow era in which black men were often victims of police persecution and assessed excessive fines for petty offenses. According to Douglas A. Blackmon’s book, Slavery by Another Name, as many as 200,000 black men were forced into debt peonage in the post-Civil War era.
The U.S. Supreme Court has never ruled on the Excessive Fines Clause. With that said, if it rules in favor of Timbs, such a decision will not fully overturn the practice of civil asset forfeiture. However, it could rein in one major aspect of its abuses.
This unjust practice has gradually become a standardized tool of the law enforcement community. Remarkably, federal agencies seized over $5 billion in 2014, which was more than the amount of property burglarized that same year, $3.9 billion.
Suffice it to say, civil asset forfeiture is padding municipal budgets. One of the more glaring examples of this self-serving dynamic came from a seminar led by Harry S. Connelly Jr., a city attorney for Las Cruces, New Mexico. His zealous support for civil asset forfeiture made it clear that law enforcement is often more focused upon raising revenue, rather than public safety.
In particular, Connelly lauded a scenario in which parents lost their $300,000 house after their son was caught selling $10 of marijuana outside of their home.“Just think what you could do as a legal department. We could be czars. We could own the city. We could be in the real estate business,” said Connelly.
Media attention generally focuses on draconian cases involving high-dollar figures, cars, or homes that were confiscated by the government. However, one of the more perverse aspects of civil asset forfeiture is the manner in which much smaller amounts of money are routinely confiscated by police.
To be exact, the median forfeiture in Chicago was $1,049, according to a study by Reason Magazine and the Lucy Parsons Lab. That’s particularly disturbing because it generally costs at least $2,000 in legal and court fees to recover your assets. In other words, even if you’re willing to climb through a pile of red tape, it’s pointless to recover your assets in most cases.
Moreover, unlike Timbs v. Indiana, the vast majority of civil asset forfeiture cases don’t involve a corresponding criminal case. In fact, eighty-seven percent of federal forfeitures are civil, not criminal.
The reason is that the government has to prove guilt beyond a reasonable doubt in a criminal case. On the other hand, the presumption of innocence doesn’t exist in a civil asset forfeiture case.
The defendant is technically the property that was seized. The owner must prove in court, with a preponderance of evidence, that the property wasn’t used to commit a crime or derived from criminal activity.
This is an un-American and counterproductive practice that is fundamentally opposed to constitutional principles. For this, among other reasons, are why 84 percent of Americans oppose civil asset forfeiture.
This is such an egregious issue that it motivated the generally reticent Justice Clarence Thomas to comment on Leonard v Texas. In that case, the police confiscated $201,100 in cash during a traffic stop. The money, along with the bill of sale for a Pennsylvania home, was located in a safe inside the trunk of the car.
Thomas pointed to wide misconduct associated with civil forfeitures. He even cited a few news reports and a research paper by the Institute for Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture. However, Thomas reluctantly ruled that the court couldn’t hear the case because those issues weren’t addressed at the lower court level first.
Nonetheless, Thomas clearly expressed interest in ruling on this issue with future cases.
“(I)t is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof.”
With that in mind, Justice Anthony Kennedy’s eventual replacement looms large in the case of Timbs v. Indiana, which will be heard in the next session of the U.S. Supreme Court. Kennedy often ruled in favor of civil rights issues.
To reiterate, the Supreme Court can’t overturn all of the wrongs associated with civil asset forfeiture in this one case. However, a favorable ruling in Timbs v. Indiana would certainly curtail some of the most flagrant abuses. Furthermore, it could lead to future cases that finally terminate this unjust and unconstitutional practice.
Brian Saady is the author of four books, including his series, Rackets, on the legalization of drugs and gambling, and the decriminalization of prostitution. You can check out his podcast and follow him on Facebook and Twitter.