Police abused civil forfeiture laws for so long that the Supreme Court stepped in. But one ruling wont end it.

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By Scott Lemieux

Civil forfeiture is sometimes a perfectly legitimate practice: Thieves do not have a right to keep the property they’ve stolen, for example. But the state’s power to compel the transfer of property from suspected criminal to the state has become a major tool in the War on [Some Classes of People Who Use Some] Drugs and, as with so much of this war, has become rife with abuse and arbitrary exercises of state power.

The case of Tyson Timbs is a good example of this abuse with which the system has become rife. Timbs was charged and ultimately convicted of selling a small amount of heroin to an undercover police officer. In addition to a suspended six-year sentence, the state seized Timbs’s $42,000 Land Rover — even though he could prove that the vehicle was purchased with money received from a life insurance policy and not the proceeds of his low-level criminal enterprise. So while $10,000 is the maximum fine under Indiana Law for the offense of which he was convicted, he was effectively fined much more than that amount when the state seized his car.

The Supreme Court, though, may have just curtailed the abuse of this practice.

On Tuesday, in its unanimous ruling in Timbs v. Indiana, the court for the first time held that the Eighth Amendment’s prohibition on “excessive fines” also applies to state and local governments. And, even more importantly, the court rejected Indiana’s argument that, even if the excessive fines clause applies to the state, it does not apply to the civil forfeiture of the assets of criminals (or suspected criminals.)

In her relatively brief opinion for the Court, Justice Ruth Bader Ginsburg rejected the conclusion of the Indiana Supreme Court that the civil forfeiture was lawful. Ginsburg — speaking for eight of the court’s nine members — held that, like the vast majority of the Bill of Rights, the excessive fines clause is a fundamental right that applies to the states under the due process clause of the 14th Amendment. And, since the court had already held in a 1993 federal case that civil forfeitures that are even partly punitive are governed by the excessive fines clause, applying the clause to the states made the case easy.

This decision could be a very big deal: Civil forfeiture is a process rife with abuse and, not surprisingly, studies have found that the practice disproportionately targets people of color. And, because the police generally keep the proceeds of forfeitures, they have a perverse incentive to seize property with little regard for the right of individuals.

Plus, as Sarah Stillman of the New Yorker observed, “you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with ‘probable cause’ is sufficient. Nor must you be charged with a crime, or even be accused of one.” Merely being related to a suspected low-level drug dealer can result in you losing your home, car and/or life savings in some jurisdictions.

This kind of arbitrary abuse by unelected state officials is exactly the kind of evil the courts should be checking, and the Timbs decision provides a basis for challenging many of these egregious abuses.

However, this is a narrow opinion, and how much it will matter will depend on how the court applies it in the future. After all, the Eighth Amendment has applied to federal civil forfeitures for more than two decades and yet, during that period, “the federal government took in $36.5 billion in assets police seized from people on America’s roads and in its poorer neighborhoods, many of whom never were charged with a crime or shown to have drugs.” And that’s just the federal government.

The court, then, will need to go further than it has here in order to rein in the abuse of civil forfeiture. It should make it clear that property cannot be taken from people who are merely suspected of crimes or were not materially connected to criminal activity. And it will also need to add some real teeth to the excessive fines clause: If Indiana can evade this ruling by simply raising its maximum fine for low-level drug offenses, the court’s holding will be ineffectual going forward.

Still, Timbs is a good start that suggests the Court will look more skeptically at arbitrary seizures of property. Plus, as the unanimity of today’s ruling indicates, it’s an increasingly rare issue in which liberals and conservatives should be able to find common ground.