By Dave Smith, Senior Contributor, US Daily Review.
“No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – United States Constitution, Amendment 5.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – Amendment 8
When the U.S. Supreme Court reconvenes in for its next term on the first Tuesday in October, it will have an opportunity to right one of the most egregious wrongs in contemporary American governance: civil asset forfeiture.
Under this policy, local, state, and federal governments seize assets – cash, cars, even homes – based on the suspicion of a relationship to criminal activity. No criminal conviction – or even criminal charges – are required. Worse, many local and state law enforcement departments are incentivized to do so: they can auction off the assets and, depending on the state, the money goes to the department.
In the case of the federal government, a 1984 law allows federal agencies to retain the funds from assets they seize, and allows local agencies to participate in the pirated booty through the Equitable Sharing Program. The Institute for Justice, a legal foundation that advocates on behalf of forfeiture victims, studied fourteen states’ forfeitures from 2002-2013 and found that revenue doubled over that time; from 2001-2014, the federal government collected $29 billion in assets.
Many of the cases are so outlandish they nearly seem impossible. In the 1994 case where the Supreme Court upheld this practice, Bennis v. Michigan, the eponymous Mrs. Bennis had the automobile she owned jointly with her husband seized by authorities after they caught him cavorting with a prostitute – even though she was not charged with a crime or even knowledgeable about her husband’s extracurricular activity. In another case, a couple lost their home to police because their son was allegedly – and without their knowledge – selling heroin in the house. In yet another famous case, a Minnesota businessman had $105,000 in cash seized during a speeding ticket stop because the officer claimed to smell marijuana; the cash was for a business purchase, no illegal drugs were found, and he was never charged with any crime.
After seeing federal civil asset forfeiture more than double under his Administration, President Obama instructed his Attorney General, Eric Holder, to tighten the rules governing the forfeitures and suspend the Equitable Sharing Program. But Holder’s successor at the Department of Justice, Loretta Lynch, restarted the program in 2016. Trump Administration Attorney General Jeff Sessions further broadened the program, praising civil asset forfeiture as “a key tool that helps law enforcement defund organized crime” and claiming that confiscating money and property from people not charged with a crime “weakens the criminals and the cartels” and even that “funds that were once used to take lives are now being used to save lives.”
In the case coming before the Supreme Court, a man is fighting Indiana authorities to keep a $40,000 Land Rover that he purchased with inheritance money. In this case, the petitioner did plead guilty to a crime (selling less than $200 of drugs) and served his sentence – a fine of $1200 and a year of house arrest – but the authorities sought to keep his vehicle, even though the maximum fine for a felony conviction in Indiana is $10,000. Because $40,000 is 400% of $10,000, the defendant is claiming that the 8th Amendment’s Excessive Fines Clause is being violated.
Some states have implemented or are discussing reform of civil asset forfeiture, and both Justice Clarence Thomas and Justice Neil Gorsuch have expressed opposition to the practice. With Timbs v. Indiana, the Supreme Court can make a strong stance in favor of Due Process and against government intrusion through Excessive Fines, and to bring more attention to a practice that amounts to guilty until proven innocent.
Born in the same county as Davy Crockett in East Tennessee, Dave found his way to Texas where he works in the petrochemical industry. He’s written and spoken about politics on various media outlets including Fox, ABC, and Townhall. He is a graduate of Tennessee Tech with a degree in chemical engineering. Follow Dave on Twitter: @semperlibertas.