The Supreme Court Unanimously Weighs in on Civil Forfeiture - Rolling Stone
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The Supreme Court Unanimously Weighs in on Civil Forfeiture

Justice Ruth Bader Ginsburg wrote in the majority opinion that excessive fines can be used to retaliate against enemies or chill political speech

Visitors wait to enter the Supreme Court. During a unanimous ruling that the Constitution's ban on excessive fines applies to the states. The outcome Wednesday could help an Indiana man recover the $40,000 Land Rover police seized when they arrested him for selling about $400 worth of heroinSupreme Court Excessive Fines, Washington, USA - 20 Feb 2019

Visitors wait to enter the Supreme Court.

J Scott Applewhite/AP/REX/Shutte

For years Tyson Timbs passed by an Indiana police impound lot on his way to work where he could see his Land Rover, confiscated in 2013 after he sold an undercover officer four grams of heroin. “It was a visual reminder for him that this wasn’t over,” Timbs’ lawyer, Wesley Hottot, tells Rolling Stone. “That he was still being punished.”

Timbs is one of thousands of people around the country who have had their cars, cash, homes and other property seized when they are suspected — even if they are never convicted — of committing a crime. A 2015 study found that over the preceding decade, the federal government had used civil forfeiture as justification to confiscate billions of dollars of cash and property. The federal government has only become more bullish in the years since, with former Attorney General Jeff Sessions declaring in 2017 his intention to dramatically expand the practice. “I love that program,” Sessions said at the time. “We had so much fun doing that, taking drug dealers’ money and passing it out to people trying to put drug dealers in jail. What’s wrong with that?”

What’s wrong with it, all nine members of the Supreme Court agreed Wednesday, is that the practice can be unconstitutional if the seizure constitutes an excessive fine, something the Eighth Amendment protects against. It’s the first time that civil forfeiture has been subjected to Constitutional scrutiny.

Take, as the Supreme Court did, the example of Timbs. About six years ago, Timbs was on a streak of bad luck: he got addicted to prescription painkillers, then hooked on heroin. Around the same time, his father died and, as a result, he came into a bit of money. Timbs used most of it — $42,000 — to buy a Land Rover. He used some of the rest to buy drugs, and sold some of those drugs — less than $400 worth — to an undercover officer introduced to him by a friend who, unfortunately for Timbs, was a confidential informant for the police.

It was Timbs’ first drug offense. He was convicted and sentenced to a year of house arrest, plus five years probation, and ordered to pay $1,200 in fees. But the state of Indiana wanted more than just the conviction: they wanted the Land Rover. The state seized it, arguing that the truck had been used to transport drugs.

The maximum monetary fine for Timbs’ crime was $10,000. The first two courts where his civil suit was heard ruled the seizure amounted to an excessive fine, but the Indiana state Supreme Court disagreed, and the case went to the Supreme Court in Washington, D.C. 

Protections against excessive fines have been enshrined in law going all the way back to the Magna Carta, Justice Ruth Bader Ginsburg wrote in the majority opinion, because they can be used to retaliate against enemies or chill political speech. “They can also be employed, not in service of penal purposes, but as a source of revenue,” she added.

“This is the dirty secret of the American criminal justice system: that police and prosecutors can impose crippling fines on people, as they did in this case,” says Hottot, a senior attorney at the libertarian nonprofit Institute for Justice. Wednesday’s ruling could change that. “What this means for advocates across the country is that they now have a federal Constitutional backstop that says that even if the state decides that I’m going to lose my home, my car or my cash, a judge gets to decide whether or not that is excessive under all of the circumstances.”

For now, that’s all Timbs gets: the chance to go back to Indiana, where he can argue that the seizure was unconstitutional, then wait for the lower court’s verdict. Hottot, for his part, is optimistic. “This is a strong signal that there are limits to the government’s power to take property from people.”

What exactly those limits are, however, remains an open question. Next, Hottot says, “We’re going to have to establish, case by case, what the Supreme Court thinks is excessive… That is the next, 50-year project for advocates like the Institute for Justice.”

In the meantime, the truck remains in custody of the state of Indiana, although, according to Hottot, it has disappeared from the impound lot. “We didn’t know where it went for about a year,” the lawyer says, though the state had indicated in media reports that it has been moved to indoor storage.

If Timbs gets the car back at all it will be a victory, even if it’s more symbolic than anything else so many years later, the car will have lost much of its value. “We hear stories every day of the week where people get their vehicles back three, four, five years after they were seized, never getting before a judge,” Hottot says. ”And when they get those vehicles back they’re worthless. The window has been left open, the tires are flat, the transmission has rusted. It’s really a burden on people like Tyson.”

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