SCOTUS Will Hear Case That Could Subject Asset Forfeiture to 8th Amendment - Granite Grok

SCOTUS Will Hear Case That Could Subject Asset Forfeiture to 8th Amendment

Civil Asset Forfeiture

The Stop Asset Forfeiture folks should take note.

Yesterday, the Supreme Court decided to consider Timbs v. Indiana, an important constitutional property rights case. As my co-blogger Eugene Volokh and Reason’s Damon Root explain, the case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as “excessive” and to what extent the Clause applies to asset forfeitures, as well as more conventional fines.

Two years ago next week, then Gov. Maggie Hassan signed Asset Forfeiture Reform in New Hampshire without much comment on her part.

Civil asset forfeiture is dead in New Hampshire. Convictions are now required. It is a huge step forward for liberty and property rights. But the Governor can’t bring herself to say it which suggests, rightly if you ask me, that it means nothing to her.

The Feds are still in the Asset Forfeiture business so we’ll want to keep an eye on this case.

As Ilya Somin points out at the Volokh Conspiracy (same link as above),

I believe the case for “incorporation” of the Clause against the states is extremely strong, and should command widespread agreement on the Court. The other issues are somewhat tougher. But there is still a strong argument for using the Clause to impose significant constraints on at least a wide range of asset forfeitures.

The biggest problem is wrestling with a current definition of “excessive” “fines.” I quote-mark both because there is room for interpretation as to the meaning of both in this context.

Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns).

And,

The last big issue that the Court may have to address in Timbs is what counts as an “excessive” fine. In Bajakajian, the Court ruled that “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” This is far from a precise standard, and it often will not be easy to tell where mere ordinary disproportion ends, and the “gross” kind begins.

The good news is that the nature of the case relates specifically to the use of civil forfeiture (even tough it is a criminal case), which the court has yet to address clearly and that is an issue sorely in need of clarity.

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