More Good News on Asset Forfeiture

Fenster writes:

State and local police in many jurisdictions regularly seize property in the course of their duties.  Sometimes property is seized in the context of a conviction–for instance the taking of a car from a person convicted of a drug offense.  But at other times property is seized even though no conviction has been made or even charges filed.  Someone pulled over driving has more cash than the police think reasonable and it is taken on the grounds that it was likely connected to some nefarious ends.

Fenster wrote about the latter practice earlier, here and here.  It is a ridiculous practice, very hard to square with due process from a constitutional point of view and simply a very bad idea in practice, as it sets up all manner of perverse incentives given that the police end up the beneficiaries of the loot.

The Supreme Court’s decision yesterday in Timbs v. Indiana strikes a severe blow against the first practice mentioned above.  Following a guilty plea for selling under $400 of heroin to an undercover cop, the police took Timb’s $42,000 Land Rover, an asset the value of which was several times the maximum fine under the law for the crime.

Per Ilya Somin at The Volokh Conspiracy:

Earlier today, the Supreme Court issued its ruling in Timbs v. Indiana. The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is “incorporated” against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic “yes.” As a result, the ruling could help curb abusivephr asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged.

Note the phrase at the end of the quote “including in many cases where the owner has never been convicted of anything, or even charged.”  The decision does not go directly at situations in which assets are taken without conviction or crime.  That’s because it was decided on 8th Amendment excessive fines grounds.   Excessive fines have surely been seen in cases in which assets are taken in the absence of charges, and the decision will be a useful tool to curb those situations.  But what is the justification for taking one thin dime from someone that has not even been charged with a crime?

Maybe a bit higher.  As one commenter at the Volokh site remarked:

In the context of civil asset forfeiture (where a known property owner is nonetheless not convicted of any crime), I think the appropriate threshold for “excessive” is about $1.00

So it ain’t over.

The fact that the decision was unanimous is a good sign.  It is some evidence of a court that is skeptical of police overreach as a general matter and on various grounds.  As another commenter at the Volokh site put it:

I think Civil Asset Forfeiture may have lost Vicksburg, but there’s a lot more fighting to go before it gets to Appomattox.

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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1 Response to More Good News on Asset Forfeiture

  1. flulrich says:

    Does anyone else besides the nerds on here and at the Volokh Conspiracy understand the Vicksburg reference?


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