Matthew T. Mangino

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.