Supreme Court's New Ruling on Civil Asset Forfeiture Is Pretty Huge

By Alan Pyke, ThinkProgress

21 February 19

Supreme Court puts cops — and their victims — on notice about abusive asset forfeiture.

tates cannot ignore the Constitution when imposing fines or confiscating people’s property in civil or criminal cases, the Supreme Court unanimously ruled Wednesday.

The decision in Timbs v. Indiana means change is on the wind for the widespread and chronically abused law enforcement tactic of civil asset forfeiture. It will also have sweeping implications for other monetary punishments levied by state and local governments, including the grubby spiderweb of municipal court fines whose cumulative effect is to make poverty itself a jailable offense in many jurisdictions.

But though the unanimous ruling gives defendants a powerful new tool to combat abusive practices by local cops and fine-happy judges, it is not a self-executing change. There will be no lightswitch moment when people simply stop being victimized by abusive forfeiture actions like the one that led to Tyson Timbs’ $42,000 Land Rover being confiscated by Indiana officials in 2013.

“It’s not like police practices are going to change tomorrow,” Institute for Justice attorney Wesley Hottot, who argued the case in court, told ThinkProgress. “They’re definitely going to be taking that property just like they would have yesterday. I think as long as police and prosecutors are allowed to keep 100 percent of the assets they take from people, sometimes without even convicting them of a crime, they’re going to maintain that practice.”

Timbs had bought the truck with the life insurance payout he received upon his father’s death. Indiana cops took it from him after he sold a couple grams of heroin to an undercover officer — a moment his supporters describe as the rock bottom of a years-long slide into depression and prescription drug addiction, from which he has since rebuilt his life in a more positive direction.

Timbs’ case is an example of criminal asset forfeiture, the less common but more legally clear-cut version of police property-seizing where someone has already been convicted of a crime. Four out of five asset forfeiture cases nationwide do not feature a criminal conviction. In many cases, the person whose things get taken never even gets charged with a crime, let alone convicted of one. The cases are technically brought against the confiscated property itself, generating absurd legal contrivances like United States vs. Approximately 64,695 Pounds of Shark Fins.

These civil forfeitures have become a key revenue-raising tool for prosecutors’ offices and police agencies left underfunded by lawmakers — a broken incentive structure that has made dubious property confiscations common around the country.

Police respond to that criticism by describing asset forfeiture as a crucial tool for dismantling drug networks by making them less profitable. Wednesday’s ruling doesn’t take away that tool or end abuse of it. The high court has repeatedly upheld the legality of forfeiture for years, and did not break that chain this week. But it did make it far easier to challenge the cops when they accuse your shark fins of committing a crime. By making clear what should have been obvious all along — that the Eighth Amendment’s “excessive fines clause” applies in state and local courts not just federal ones — the justices have radically changed the parameters governing forfeiture, even if they don’t necessarily want to make it disappear.

“I don’t see prosecutors disarming unilaterally or accepting that they shouldn’t bring forfeitures that will likely be deemed excessive,” said Hottot. “It’s more on the courts than it is on police and prosecutors activities. They’re still going to seize people’s cars like they did here, and hold them for five years. At the end of the process they stand to benefit from taking people’s property. The question now becomes what are courts going to do with that kind of activity, in light of this ruling? Are they going to allow it or put limits on it?”

Indiana is one of just four states to have explicitly framed its asset forfeiture system as beyond the Eighth Amendment’s reach. Policies will have to change in those jurisdictions immediately after the high court ruling, Hottot said.

But everywhere else, the law moves slow — and the onus will be on individual defendants and defense lawyers to remind judges that the Supreme Court has put them on notice about such abuses. The people caught up in forfeiture schemes will have to get by without their car, cash, or other property for the months or years that a local court can take to come to the right conclusion in their case.

The decision’s broader implications for the policies that have effectively converted many municipal jails into modern-day debtors’ prisons may kick in more rapidly, ACLU Racial Justice Project deputy director Nusrat Choudhury told ThinkProgress.

“Justice Ginsburg’s opinion recognized that the explosion in state and local governments and courts seeking to raise public revenue extends not just to forfeitures but fines and fees,” Choudhury said, such as the ignominious traffic court system of St. Louis County, Missouri, or the hamster-wheel systems of fines for truancy, failure to appear, and other minor local offenses across the country. But there, too, the burden will rest with defendants instead of those who are putting them in untenable and unconstitutional positions through public policy.

“People have to invoke the protection of the excessive fines clause,” Choudhury said. But both courtroom defendants and the broader civil rights community can now look for creative ways to apply the Timbs ruling in cases and legislative campaigns aimed at dismantling such legalistic repressions of the poor. “I think at this point there will be a lot of experimentation across the country to see what’s possible. What we know is this system has gone haywire, and we’re excited to see how people invoke this right in state and federal courts across the country.”

There’s no reason policing agencies or local governing bodies can’t try to get ahead of those court rulings by voluntarily redesigning their own practices around either fine structures or forfeiture. There’s just no incentive for them to be so proactive — and substantial history to suggest they will look to drag out any change that interferes with the status quo for as long as possible.

Law enforcement groups have virulently opposed past efforts to curb the abuse potential baked into a system where people with guns and badges get materially rewarded from illegitimate thefts of private property. Though the national Fraternal Order of Police often touts its support for the final version of a federal forfeiture reform package passed in the 1990s, the FOP only got on board after securing changes to the original bill that made it ineffectual in the eyes of forfeiture critics.

“It’s not because police officers and prosecutors are evil, but because lawmakers have put them in a position where they’re trying to fund their operations by taking property from people. Sometimes without even convicting them of a crime,” said Hottot.

“Nothing motivates a person to lobby for their interests more than money. And police and prosecutors are a very powerful lobby at state legislatures.”