How can forfeiture violate the Excessive Fines Clause?

How Forfeiture Can Violate the Excessive Fines Clause

The Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution prohibits the government from imposing excessive fines. This clause applies to federal, state, and local governments. It limits their ability to use fines as punishment for a crime. Fines can include forfeitures, where the government seizes property connected to criminal activity.

Forfeiture is a powerful tool used by law enforcement. Police can seize assets like cash, cars, and homes that are linked to illegal activity. The property may be forfeited even if the owner is never convicted or charged with a crime. Law enforcement agencies often get to keep the proceeds from what they forfeit.

Critics argue this gives police a profit motive to abuse forfeiture. There are many cases of innocent owners losing their property unfairly. The Excessive Fines Clause provides an important constitutional protection against forfeiture abuse.

What is forfeiture?

Forfeiture allows police to seize assets connected to criminal activity through civil lawsuits against the property itself. Since it’s a civil action, the legal standards are lower than a criminal case. The owner does not need to be convicted or even charged with a crime.

Police may seize property if they have probable cause to believe it is connected to criminal activity. Common targets are cash, cars, homes, and other valuables. Police can forfeit property without ever filing criminal charges against the owner.

Most states and the federal government have laws allowing civil forfeiture. The types include:

• Criminal forfeiture – Occurs after a criminal conviction and is part of the sentence.
• Civil forfeiture – Allows seizure of assets without convicting the owner of a crime.
• Administrative forfeiture – Allows police to forfeit assets without a warrant or court order.

Civil and administrative forfeiture are controversial because they don’t require a criminal conviction. Critics argue they undermine property rights and due process.

How forfeiture generates revenue

Most forfeiture laws let law enforcement agencies keep some or all of the proceeds from forfeited assets. This provides a financial incentive for aggressive seizures.

The federal Assets Forfeiture Fund took in over $93 million in net deposits in 2014. Almost $24 million of that went directly to the agencies that seized the assets, such as the FBI, DEA, and ICE.

Many states also let local police departments keep forfeiture proceeds. A report found Louisiana District Attorneys’ offices used forfeiture to fund expenses like travel, bonuses, and sports tickets.

Critics argue this profit motive distorts law enforcement priorities. It encourages seizures of assets only tangentially connected to crime. Police may also target high-value property over stopping illegal activity.

Examples of forfeiture abuse

There are many examples of innocent owners losing their property through forfeiture:

• An elderly couple had their car forfeited when their son was arrested for drunk driving while using it.
• A college student had $11,000 seized during a minor traffic stop.
• A family’s rental home was seized when a tenant sold $40 of marijuana there.

Since forfeiture doesn’t require conviction, innocent owners bear the burden of fighting to get their property back. Many lack the resources for a lengthy legal battle.

Forfeiture and the Excessive Fines Clause

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This restricts the government’s power to use fines as punishment.

For a long time, courts did not apply the Excessive Fines Clause to civil forfeiture. But recent Supreme Court rulings found it does provide important protections.

In Austin v. United States (1993), the Court held civil forfeiture counts as a “fine” under the Eighth Amendment. This means forfeitures cannot be grossly disproportionate to the offense committed.

More recently, Timbs v. Indiana (2019) ruled the Excessive Fines Clause applies to states under the 14th Amendment. This gives property owners stronger grounds to challenge state and local forfeitures as unconstitutional.

What makes a forfeiture excessive?

Lower courts are still developing tests for determining if a forfeiture violates the Excessive Fines Clause. Factors considered include:

• Fair market value of the property forfeited
• Nature and severity of the criminal conduct
• Potential criminal penalties for the conduct
• Harm caused to the public by the conduct

Courts look at the totality of circumstances. Forfeitures grossly disproportionate to the offense are unconstitutional. With the Timbs ruling, property owners can now challenge state and local forfeitures on these grounds.

Criticism of civil forfeiture

Many critics argue routine use of civil forfeiture violates constitutional rights, including:

• Undermines property rights without due process
• Perverse profit incentive for law enforcement
• Disproportionately impacts poor and minority communities
• Weakens presumption of innocence in criminal law

The Timbs ruling is an important step towards curbing forfeiture abuse under the Bill of Rights. But comprehensive reform requires legislative action. Many states are now considering bills to increase oversight, protect innocent owners, and limit civil forfeiture.

Reforming forfeiture laws

Possible reforms to prevent forfeiture abuse include:

• Requiring criminal conviction before forfeiture
• Placing seized assets in neutral funds, not police budgets
• Shifting burden of proof to government
• Providing counsel for indigent property owners
• Banning roadside waivers that coerce owners to surrender assets
• Increasing oversight and transparency requirements

The Excessive Fines Clause sets an important limit on forfeiture practices. But lasting reform depends on legislative action to curb abuses. Public interest groups continue to advocate for forfeiture laws that better balance law enforcement powers with constitutional rights.

The profit incentive and lack of due process in civil forfeiture lead to many troubling abuses. The Excessive Fines Clause provides important protections against disproportionate seizures. Ongoing court cases and legislative reforms are working to rein in forfeiture practices. More work is needed to ensure forfeiture is limited, proportional, and respects the rights of property owners.

References

ACLU. “Beware of Civil Asset Forfeiture.” Accessed: https://www.aclu.org/blog/criminal-law-reform/reforming-police/beware-civil-asset-forfeiture

Carpenter, Dick M., et al. “Policing for Profit.” Institute for Justice, November 2015. Accessed: https://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf

Sallah, Michael, et al. “Stop and Seize.” The Washington Post, Sept 2014. Accessed: https://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/