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Op-ed Placement

Time for Congress to Reform Civil Asset Forfeiture After Court Ruling

BY Adam Brandon
02/21/2019
Originally Published in The Hill by Adam Brandon on 2/22/19.

Back in 2015, an eye-catching headline appeared in the news. “Law enforcement took more stuff from people than burglars did last year,” the headline read. Think about that for a moment. That’s millions of dollars in cash, homes, and cars stolen not by burglars or carjackers, but by police departments across the country. What’s worse, most of the property has been seized from people who were not even charged with a crime. You’d think this was an anecdote from a former resident of the Soviet Union, but no, this is happening here in America, the land of the free.

As it currently stands, civil asset forfeiture itself is legal. But in a unanimous ruling in Timbs v. Indiana this week, the Supreme Court incorporated the Excessive Fines Clause of the Eighth Amendment to the states. Forfeitures are now considered the same as fines under the clause. Essentially, this means that forfeitures cannot be disproportionate to the offense.

The Supreme Court may not have ruled civil asset forfeiture unconstitutional, but the ruling highlights the need for Congress and state legislatures to properly address the issue, sooner rather than later. The opinion in Timbs is also a warning to proponents of civil asset forfeiture, who have endlessly defended this constitutionally questionable practice because it provides law enforcement with additional dollars to spend.

The point of civil asset forfeiture is to seize property from criminals in relation to crimes. Law enforcement often insists that forfeiture allows them to go after the profits of criminal activity, but all too often, innocent Americans lose their property. This flies in the face of the due process clause of the Fifth Amendment, “[N]o person may be deprived of life, liberty, or property, without due process of law.”

Although Tyson Timbs committed a crime and was punished for it, property or money can also be seized from innocent Americans based merely on the assumption that their property was being used as part of criminal activity. There are numerous examples of instances in which law enforcement seized property or money from an individual who wasn’t arrested, charged, or convicted of a crime. In Timbs’ case, though, the forfeiture was disproportionate to the offense.

Law enforcement often justifies the use of forfeiture as a means to fight crime, but there is documented evidence of police chasing property or money rather than pursuing illicit activity. For example, law enforcement in Tennessee would monitor I-40 for the money leaving Nashville, not the drugs going into the city. A police chief in Columbia County, Missouri called forfeiture proceeds “pennies from heaven.” The city attorney in Las Cruces, New Mexico called items that could be seized “little goodies” and bragged, “We could be czars. We could own the city.”

Time will tell if the ruling in Timbs will disincentivize law enforcement from practicing forfeiture for profit now that forfeitures must be proportional. Only legislative action from Congress can ensure that civil asset forfeiture is used to crack down on crime rather than as a slush fund for law enforcement budgets.

Although we should be cautious to read too much into oral arguments or opinions, it appears that the Supreme Court could be primed to deliver the death blow to civil asset forfeiture with the right case.

Nearly 30 state legislatures have passed civil asset forfeiture reforms, many of which have come in the past few years. Roughly two-dozen of those states have increased the evidentiary standards needed for the government to permanently seize property, requiring either clear and convincing evidence or proof beyond a reasonable doubt in civil proceedings or a criminal conviction before property or money can be forfeited. A handful of states -- including Arizona, Nebraska, and Ohio -- have closed the loophole that allows the federal government to adopt property or money seized by state and local law enforcement.

It has been nearly 20 years since Congress passed legislation related to civil asset forfeiture. With the Timbs decision, Congress should move forward on the issue this year by pursuing legislation that increases the evidentiary standard used to seize property to “clear and convincing,” placing the burden of proof on the government, providing counsel when necessary to those from whom property or money is seized, and enhancing transparency. More can be done, but these principles are a step in the right direction.

With President Trump's support for criminal justice reform, as seen with the passage of the First Step Act in December and his dedication of a significant portion of his 2019 State of the Union address to the issue, the White House should now throw its support behind civil asset forfeiture reform as a way to preserve Americans’ civil liberties and the rule of law. The writing is on the wall and the Supreme Court’s ruling this week should serve as the impetus for Congress to get serious about civil asset forfeiture reform.