The Legal Intelligencer
February 28, 2019
Opponents of civil asset forfeiture laws recently
scored a big victory before the U.S. Supreme Court.
Those alarmed by the expansion of civil asset
forfeiture often cite the risk for abuse because in many states, like
Pennsylvania, law enforcement have an incentive to seize property, as they
receive some or all of the proceeds from its sale.
According to the American Civil Liberties Union
(ACLU), in the last decade Pennsylvania law enforcement has confiscated over
$100 million in private property through civil asset forfeiture.
The U.S. Supreme Court ruled Feb. 20, that the
Eighth Amendment’s ban on excessive fines applies to the states through the due
process clause of the 14th Amendment.
The court ruled on behalf of Tyson Timbs,
who was fighting the civil forfeiture of his $42,000 Land Rover after he
used it to sell heroin to undercover officers. The maximum fine for the drug
charge was $10,000.
The Indiana trial court found that Timbs used the
Land Rover to facilitate a crime, but found that the forfeiture of the vehicle
“would be grossly disproportionate to the gravity of Timbs’ offense, hence
unconstitutional under the Eighth Amendment’s excessive fines clause.”
On appeal, the Indiana Supreme Court held that the
excessive fines clause only constrains federal actions and is not applicable to
the states.
During the infancy of the United State of
America—following the ratification of the Constitution—James Madison introduced
20 proposed amendments to the Constitution. Twelve of those amendments were
approved by the Congress and 10 were ratified by the states.
Those 10 amendments were enacted in 1791 and became
known as the Bill of Rights. The Eighth Amendment, is simple and
straightforward. The Eighth Amendment provides that “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”
Following the Civil War, the 14th Amendment extended
the protections of the Bill of Rights to the states. The U.S. Supreme Court has
already decided that the Eighth Amendment provisions prohibiting “excessive
bail” and “cruel and unusual punishment” apply to the states through the
Fourteenth Amendment.
Both provisions have been held to be “fundamental to
our scheme of ordered liberty” with “deep roots in our history and tradition.”
In Timbs v. Indiana, 586 U.S. ___ (2019), the
court was asked to decide if the 14th Amendment incorporated the excessive
fines clause of the Eighth Amendment to the states.
Last fall, the Pennsylvania Supreme Court was asked
to determine an issue relating to asset forfeiture. The court held that there
is no common-law power to take property through civil forfeiture.
Justen Irland was arrested in Adams County when he
allegedly brandished a handgun to another driver during a road rage incident.
Irland pleaded guilty to disorderly conduct, a summary offense, and was fined
$200.
The state also confiscated his gun. Although there
was no statute authorizing the government to use civil forfeiture to take
property connected to the crime of disorderly conduct, the Adams County
District Attorney’s Office argued that it had inherent “common law” authority
to use civil forfeiture to take and keep property that law enforcement believed
was connected to any crime—even disorderly conduct.
Under Pennsylvania’s civil asset forfeiture laws,
the government can legally take property it claims is connected to illegal
activity without convicting, or even charging, the property owner of a crime.
Police and prosecutors who make decisions about when
to pursue civil forfeiture can keep all of the forfeited funds for their own
budgets. Pennsylvania law enforcement officials have a direct financial
incentive in pursuing forfeitures.
The Pennsylvania Supreme Court concluded that there
is “no historical foundation establishing common law civil forfeiture in the
commonwealth and that civil forfeiture of derivative contraband requires
statutory authorization,” see Commonwealth v. Irland, 32 MAP 2017.
In Timbs, the U.S. Supreme Court acknowledged
that by 1787 the constitutions of eight states—about 70 percent of the
population—expressly prohibited excessive fines. By 1868, 90 percent
of the country’s population lived in a state that prohibited excess fines.
Today, all 50 states have a constitutional provision prohibiting the imposition
of excessive fines.
Justice Ruth Bader Ginsburg announced the decision
for the court in Timbs, saying that the Eighth Amendment’s excessive fines
clause protects against government retribution.
“For good reason, the protection against excessive
fines has been a constant shield throughout Anglo-American history: Exorbitant
tolls undermine other constitutional liberties,” Ginsburg wrote.
Ginsburg continued, “Excessive fines can be used,
for example, to retaliate against or chill the speech of political enemies.”
All states and the federal government allow law
enforcement to seize and forfeit cash, property and other materials they
believe are associated with illegal activity, reported the National Conference
of State Legislatures.
Once property has been seized, prosecutors file
civil actions seeking to forfeit property suspected of being involved in
illegal activity. The action is typically against the property—not the
person—and can be seized regardless of what happens on the criminal side of the
case.
In Timbs, the state of Indiana attempted to
make the argument that “in rem” actions, against the property itself and not
the owner, are beyond the reach of the excessive fines clause. In Austin
v. United States, 509 U.S. 602 (1993), the court specifically held that civil
in rem forfeitures fall within the clause’s protection when they are at least
partially punitive. The high court chose not to revisit that decision in Timbs.
The concern over abuse of civil forfeitures statutes
is being gradually addressed by state legislatures across the country. North
Carolina, New Mexico and Nebraska have abolished civil forfeiture, according to
the National Conference of State Legislatures.
Eleven states, California, Connecticut, Iowa,
Minnesota, Missouri, Montana, Nevada, New Hampshire, Ohio, Oregon and
Vermont—require a criminal conviction—proof beyond a reasonable doubt—to engage
in some or all forfeiture proceedings.
Ginsburg plainly set forth the fundamental concern
with civil asset forfeitures when she suggested, “Fines may be employed ‘in a
measure out of accord with the penal goals of retribution and deterrence,’ for
‘fines are a source of revenue,’ while other forms of punishment ‘cost the
state money.’”
Matthew T. Mangino is of counsel with
Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll,
2010,” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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