Rule Five Asset Forfeiture Friday

Readers of these virtual pages will probably already know my opinions on asset forfeiture.  Namely, I think it is theft, pure and simple, by agents of government, and is clearly unconstitutional as it results in seizure of a citizen’s assets with no due process.

Now, at last, there is a Supreme Court decision, unanimous even, that agrees, although it makes the decision on 8th Amendment grounds.  Excerpt:

Last week, a unanimous Supreme Court ruled that law enforcement can no longer make grossly disproportionate seizures of property, even from people who owe money after being convicted of crimes.

Tyson Timbs, having pleaded guilty to a drug-related crime, was given a year of home detention and put into a treatment program. But he owed $1,203 to the State of Indiana. The Hoosier State chose to recoup, through a civil forfeiture action, his obligation by seizing his $42,000 Land Rover, which he had purchased recently with money that came from the life insurance policy of his deceased father.

Although Justices Neil Gorsuch and Clarence Thomas offered slightly different rationales for reaching the same conclusion, all nine justices agreed that the state cannot simply take seize mountains where molehills are due. This ruling does not deal with the many broader issues of civil asset forfeiture, nor with all the specific abuses of civil asset forfeiture that we have previously written about. But it does at least set a clear limit at one end of the field for seizures that are ridiculously large in response to offenses that are modest. It will have the practical value of limiting the worst abuses.

Writing for the court, Justice Ruth Bader Ginsberg cited the Eighth Amendment’s clear language: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This language, the justices agreed, is binding on not only the federal but also state governments, and it is also applicable to cases like this one.

This is a step in the right direction, to be sure.  Now the next case should be one on Fifth Amendment grounds.  That amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The relevant part here being “…not be deprived of life, liberty, or property, without due process of law.”  Asset forfeiture prior to conviction does precisely this, has been historically used as a revenue-generating tool by local and state governments for far to long, is anathema to any concept of individual liberty and needs to stop.  It’s inconceivable that this practice has gone on as long as it has.

But what’s great about this decision is that the arguments against excessive asset forfeiture on Eighth Amendment grounds were compelling enough to bring both wings of the Court into agreement.  There can be no argument from either side that this was a partisan decision; long-standing liberal Ginsburg authored the opinion, while Trump appointees Gorsuch and Kavanaugh agreed.

As the piece linked above notes, this will curb the worst asset forfeiture abuses.  Now all we need is a good Fifth Amendment case to end this abusive practice once and for all.