You may have heard of civil forfeiture. Someone you know may have lost an automobile or another asset to it. Civil forfeiture is a tool used by federal and state law enforcement and prosecutors to increase the penalties for crimes such as drug trafficking.
Some cities have aggressively employed forfeiture in efforts to deter drunken driving.
In 2001, then New York City Mayor Rudy Giuliani announced that some 4,000 vehicles had been seized from individuals accused of DWI in the city during the previous two years.
The key word in “civil forfeiture” is “civil.” While New York City’s DWI arrestees are typically prosecuted for a misdemeanor, their vehicles are sued as instrumentalities of the crime.
The law follows two separate tracks: The arrestee is subjected to the criminal process; the vehicle becomes the defendant — literally — in a civil action for forfeiture.
To convict the accused individual, a prosecutor must prove the crime of DWI beyond a reasonable doubt, while the civil action against the vehicle requires a lower burden of proof.
One result of this two-track system is that, even if a prosecutor dismisses or loses the criminal case, the civil action may still proceed, sometimes resulting in an order of forfeiture even though no criminal conviction has been proved.
Civil forfeiture was an especially potent tool of federal agents during Prohibition.
Federal courts in the 1920s and 1930s were filled with civil actions titled U.S. v. One Ford Truck or the like. Scholars have traced the origins of civil forfeiture to the medieval law of “deodand” — personal property forfeited to God for causing a person’s death — and even to Mosaic law: “If an ox gore a man or a woman, that they die, then the ox shall be surely stoned” (Exodus 21:28).
In civil forfeiture, humans are not the focus; the thing is the thing. And things are not entitled to the protections that humans enjoy under law.
In recent years, the potential for forfeiture abuse has become worrisome. In 2013, The New Yorker exposed the unfair targeting of drivers by law enforcement in a small town in Texas.
Police were pulling drivers over, threatening to arrest them on sometimes tenuous charges and then offering to let them go if they signed a waiver relinquishing cash or property associated with the alleged crime.
Forfeiture abuse is not confined to any one area of the country. Hundreds of state and federal laws authorize forfeitures for all manner of large and small crimes.
But forfeiture abuse has recently been dealt a blow.
In February 2019, as reported in the Tulsa World, the U.S. Supreme Court handed down a unanimous decision in Timbs v. Indiana. In Timbs, a man had been sentenced to home detention and probation after pleading guilty to crimes involving the sale of a controlled substance.
But the heart of the dispute was the separate civil action that authorities had filed against the man’s Land Rover SUV, valued at roughly $42,000, more than four times the maximum fine that could have been assessed for his drug conviction.
The legal point actually decided by the court is one that few besides law professors might get excited about.
The court specifically ruled, for the first time, that the excessive fines clause of the Eighth Amendment applies against states as well as the federal government.
The court then sent the case back to Indiana state courts to decide whether forfeiture of the Land Rover would be grossly disproportionate to the associated criminal offense and thus an unconstitutionally excessive fine under the Eighth Amendment.
Whatever happens to Mr. Timbs’ Land Rover, a new weapon against civil forfeiture abuse has become available: a constitutional defense that may at least rein in the abuse of forfeiture.
It’s a basic tenet of due process that the punishment should fit the crime. After Timbs, forfeitures may start to look more like fitting punishments than outsized penalties.