It’s a cool Sunday morning. You’re driving down the highway at 60 miles per hour when you see flashing lights and hear a siren behind you. You pull off to the side of the road as an officer struts over to your car window. The officer informs you that you were driving five miles over the speed limit. You go to court, plead guilty, receive a stern warning and incur a $45 fine. Two weeks later, your lawyer calls: The government is confiscating your car through a process called “civil asset forfeiture.” You appeal, saying that this is an excessive penalty, but the judge asserts that the state has every right to take your car for speeding, because the Eighth Amendment, which protects citizens against excessive fines, doesn’t apply to the states. And even if it did, civil asset forfeiture doesn’t count as a fine.
This situation may sound dystopian, but according to Indiana Solicitor General Thomas M. Fisher, it would be perfectly legal. When confronted with a similar hypothetical by United States Supreme Court Justice Stephen Breyer, Fisher confirmed that it would be constitutionally possible. Breyer openly mocked Fisher for this opinion, to which Fisher responded, “Well, in rem forfeitures have always been with us and they have always been harsh” (Oyez, “Timbs v. Indiana,” 12.04.2018).
On Nov. 28, 2018, the United States Supreme Court heard arguments in the case of Tyson Timbs v. Indiana. In 2013, U.S. law enforcement arrested Timbs for selling heroin. A few months later, the state filed to take away his car, which Timbs had used to drive to the sites where he sold his drugs. The court, however, ruled such an action as unconstitutional, because the car was four times the maximum monetary fine that Timbs could have received. The Supreme Court of Indiana overturned the case, ruling that the United States Supreme Court had not given clear guidance that the Eighth Amendment protection against excessive fines applied to state governments. It is now up to the Supreme Court to determine whether it should incorporate the protection against excessive fines, meaning that states must follow it too.
I am not going to delve into why the Supreme Court should elect to incorporate the excessive fines clause. It’s fairly obvious at this point where the Supreme Court stands on this issue: Several of the justices have outright said that they would implement the clause, and others took to belittling Mr. Fisher’s arguments in open court, with Justices Neil Gorsuch and Sonia Sotomayor coming very close to openly telling Mr. Fisher that he would lose. Before Mr. Fisher could get 30 seconds into his argument, Gorsuch interrupted, saying, “We all agree that the Excessive Fines Clause is incorporated against the states … I mean most of the incorporation cases took place in the 1940s, and here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on” (Oyez, “Timbs v. Indiana”).
Instead, I want to address the question of whether civil asset forfeiture qualifies as a fine. First, it’s important to understand what civil asset forfeiture entails. Essentially, it allows the government to seize your property or money if they suspect it was used to commit a crime or obtained illegally (Findlaw, “What Is Civil Asset Forfeiture?”). So, for example, in Sept. 2014, the government took Christos and Markella Sourovelis’s house after their son was arrested for selling heroin. They had never been convicted of a crime (CNN, “Parents’ house seized after son’s drug bust,” 09.08.2014).
In other words, the government can take your property even if you haven’t been officially convicted of any crime. In most states, they don’t require any proof that the property’s owner committed wrongdoing. Therefore, if I sold drugs out of my neighbor’s house, the police could use this opportunity to seize their home, even if my neighbor had no knowledge of my activities. This is because the lawsuit is not against the individual, but the property itself; in legal terms, this is called “in rem.” All the police have to do is prove that the property was involved in a crime. Law enforcement can then sell that property, keeping most—and in some jurisdictions all—of the proceeds (Findlaw, “What is Civil Asset Forfeiture”). It’s a rather insidious way in which the government, for its own profit, blatantly infringes on its citizens’ rights to due process.
The Supreme Court has already ruled that it considers civil asset forfeiture a fine. In Austin v. United States, the court decided that in rem forfeitures serve as punitive measures. Essentially, the government was not seizing property to return to victims, but instead as an additional means of punishing the accused. Justice Harry A. Blackmun wrote that because seizing someone’s property is inherently a punitive measure, it must meet Eighth-Amendment scrutiny (Oyez, “Austin v. United States”). However, the state of Indiana is now asking the United States Supreme Court to overturn Austin and rule that civil asset forfeitures are not fines and therefore, the Eighth Amendment doesn’t apply. This would mean that if the government decided to steal your $40,000 car because you stole $5 in bubblegum and then drove it to your house, you couldn’t go to court and argue that this measure is excessive.
The Supreme Court must uphold Austin v. United States and rebuke the state of Indiana by affirming that civil asset forfeiture is a fine. By doing so, the Supreme Court could offer considerable protections to everyday Americans and provide recourse against government overreach. The right to due process cannot be eroded simply because the police are more interested in lining their own pockets than in fulfilling their obligations to the law. Civil asset forfeiture as it exists now is no more than common theft— the only difference here being that there is no higher authority to which you can turn. If a robber breaks into your home, you call the police; if the government seizes your home through an outdated, authoritarian legal loophole, your only recourse is to go through the courts. If the Supreme Court agrees with Indiana, Americans will have no one to turn to when police and prosecutors determine that their prized possessions will be forfeited to the state.