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...Nor Excessive Fines Imposed...

[ Posted Wednesday, November 28th, 2018 – 17:27 PST ]

The Supreme Court may be about to seriously rein in the practice of state and local governments essentially committing highway robbery. This practice is known as "asset forfeiture," and I've written extensively about it in the past. But a new court challenge could if not end then at least severely curtail the practice at the state and local level.

The background to the case is the history of the explosion of "asset forfeiture" as a direct result of the War On Drugs. A cop can pull you over, or stop a public bus or train, and dig through your belongings. If he or she finds a large amount of cash (or even anything of value, really) then he or she can confiscate it under the claim that it was earned or bought from the proceeds of illegal activity, such as selling drugs. You'll note that no drugs need be found for this to happen -- no arrest need be made, no evidence of any crime is required at all. The cop just walks away with your money or your stuff. As a citizen, your only recourse is to sue to get your stuff or your money back. This is so expensive that few do so, leaving the cops with a bountiful means of boosting their own budgets.

But the case at hand at the Supreme Court is even more interesting, because it did actually involve a crime. Tyson Timbs of Marion, Indiana, sold "a couple hundred dollars worth of heroin." The cops confiscated a $42,000 Land Rover that Timbs had bought with money he had inherited from a relative. The highest fine he would have been liable for (for the drug crime) would have only been $10,000.

At the heart of the case is the Eighth Amendment, which reads in full: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Also at the heart of the case is the legal concept of "incorporation," which means (in layman's language) that a phrase or sentence of the Constitution (the Bill of Rights in particular) is not just federal law covering the federal government, but a right that cannot be infringed by state or local governments as well. Most of the Bill of Rights has long since been incorporated, by one Supreme Court decision or another over the years. But the phrase "nor excessive fines imposed" has never explicitly been incorporated by the high court.

If all of this seems somewhat confusing, consider the argument from Justice Stephen Breyer (which, for some reason, was left until the end of the article on the case in the Washington Post):

[Indiana Solicitor General Thomas M.] Fisher tried to argue that civil forfeitures are not the same as excessive fines. They have always been with us, and they have always been harsh, he said.

Justice Stephen G. Breyer tested how far Fisher was willing to go with that. "So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy" he is driving, even if it is only going five miles over the speed limit, Breyer asked.

"Yes, it's forfeitable," Fisher answered.

Got that? If you drive a little bit over the speed limit in Indiana, the state government thinks it has the right to confiscate your car (whether jalopy or Ferrari). That brings the legal concept home in a way everyone can understand, really. Does anyone think the states really have a right to do this, or are we all protected by the Eighth Amendment barring "excessive fines"?

The Post reports that there wasn't a single justice who seemed to be in agreement with Indiana's legal reasoning. So maybe we'll get a rare 9-0 ruling on the case? That would indeed send a strong message that the Wild West days of asset forfeiture may finally be coming to an end.

Right now, a bill is being debated in the Senate which would reform the criminal justice system. This bill would essentially walk back some of the worst excesses our legal system has slipped into during the long and fruitless War On Drugs. Even Republicans are now on board with dialing back some of these practices. The Supreme Court now has a chance to do the same thing, by making it unconstitutional for states to just confiscate any of your stuff they feel like -- even if an actual crime has been committed. In the dark days of all the "tough on crime" political posturing, absolutely nothing was deemed too harsh for anyone involved in drugs. Sell drugs from your car? Well then, you lose your car, whether you bought it with drug proceeds or not. The Eighth Amendment wasn't the only one to be completely ignored in this fervor -- the Fourth and Fifth Amendments were also largely chucked out the window when drugs were involved.

We may finally be returning to the original intent of the Constitution, albeit slowly. And original intent is well-beloved by conservatives, so this shouldn't even really be a partisan issue. When the Founding Fathers wrote that excessive fines would not be allowed, that's exactly what they meant. Forfeiting a $42,000 vehicle bought legally with legitimate money for the crime of selling a few hundred bucks of heroin is just grossly out of proportion. It is, in fact, an excessive fine.

If cops in any one state had actually acted on the legal reasoning from Indiana, and started confiscating the cars of anyone driving over the speed limit, there would have been a national outcry. And rightly so. The practice would have immediately been challenged in court (likely by a lawyer who sped and lost a pricey car), and the state would have been forced to hastily abandon the program. The courts would have ruled the whole thing unconstitutional in speedy fashion. The program certainly would not have been allowed to continue for three or four decades.

But better late than never, I suppose. The Supreme Court could unanimously stand up against legalized highway robbery, and by doing so send a very strong message that the legal excesses and abuses of the Drug War era are finally coming to a close. That is a result devoutly to be hoped for.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

12 Comments on “...Nor Excessive Fines Imposed...”

  1. [1] 
    nypoet22 wrote:

    in the original 1689 british version, the text was "nor excessive pies imposed," which of course meant meat pies. nonetheless, it is over 300 years of precedent for preventing excessive pie.

  2. [2] 
    TheStig wrote:

    I'm glad you bring asset forfeiture up now and again. It is an inherently corrupting practice that police forces become addicted to....which is ironic given that A.F. Is largely associated with drug trafficking.

  3. [3] 
    Don Harris wrote:

    CW-
    If we can apply the "...nor excessive fines imposed..." to pies then why not apply it to the discussion on mandatory lesser evil voting?

    It seems to me that in a elimination system like in Maine that saying that a citizen who voted for a candidate that was eliminated in a previous round has to vote for one of the remaining candidates in a subsequent round even if you consider none of those candidates worthy of your support/affirmation in order to have your vote counted in the total to determine a majority is excessive punishment for the crime of dissenting- which isn't even a crime.

    Don't know if you saw it or not, but in the last FTP comments Nypoet and I reached an agreement on a better way to count votes in a rank choice system than the elimination system in Maine.

    Hope you will check that out and keep it in mind if you should decide to do a follow up article on rank choice/mandatory lesser evil voting.

  4. [4] 
    nypoet22 wrote:

    @don,

    i agreed that your suggestion of a condorcet-borda hybrid could potentially be okay; whether or not it would be better than maine's system is something that i think needs to be researched and pilot-tested first. here is a discussion of condorcet and borda:

    http://theconversation.com/beyond-instant-runoff-a-better-way-to-conduct-multi-candidate-elections-74973

    however, i disagree with your implication that maine's system is not an improvement over the plurality system. in my view, it's a step in the right direction, and should be commended.

    JL

  5. [5] 
    nypoet22 wrote:

    @cw,

    if you're going to address something off-topic, please comment on pie first. pie is much more interesting than anything don might demand, and is also tasty.

    JL

  6. [6] 
    John M wrote:

    The real trick will be trying to overcome Sen. Tom Cotton of Arkansas's opposition to the criminal justice reform bill. He apparently is now pulling out all the stops to try to sink the bill, just like he did once before.

  7. [7] 
    ListenWhenYouHear wrote:

    I thought Cotton was one who has to kiss the Koch ring to keep his job, so how can he be opposed to this? Is this simply a staged dramatic response for his public’s benefit?

  8. [8] 
    ListenWhenYouHear wrote:

    Big news today: Cohen pleaded guilty to lying to Congress about Trump’s desire to build a Trump Tower in Moscow!

    Trump claims he could do anything he wanted regarding Trump Co. and Russia while he was candidate, and it was all legal. So why lie about it?

  9. [9] 
    Kick wrote:

    Russ
    8

    Big news today: Cohen pleaded guilty to lying to Congress about Trump’s desire to build a Trump Tower in Moscow!

    Yes, sir. Looks like our so-called "witch hunt" just bagged yet another guilty plea. Who knew?

    Trump claims he could do anything he wanted regarding Trump Co. and Russia while he was candidate, and it was all legal. So why lie about it?

    Because "Benedict Donald."

  10. [10] 
    Balthasar wrote:

    CW: All that I could think about as I read your article was, "where was the judiciary? This is only now reaching the top rung?" There's a twilight zone quality to that, given that SNL did a skit about it, like twenty years ago?

    It's all about the judges on the way up.

    Conservatives, bless their dark little hearts, have understood this for years. But their plans go awry whenever, you know, logic comes into it, and they end up being ruled against in some of their schemes by their own Judges (Roberts on Obamacare, for instance). Gorsuch was one of the most skeptical justices in this case, it's worth noting, considering that they stole the seat to get that vote. How ironic it would be if it turns out that he's Merrick Garland deep in his heart? heh.

    Meanwhile, Mitch McConnell, now even less popular in his home state than Ted Cruz, is holding the wildly popular and bipartisan Prison Reform Bill "prisoner"(as Mother Jones put it), and might not let it reach the Senate floor during the Lame Duck session.

    So a lot of progress is on the cusp, but hasn't happened yet.

    Democrats should remember that starting their celebrations too early has ruined many an event at this time of year, and that gifts shouldn't be counted upon until they're received.

    When you consider all of the things, in fact, that Democrats expect to have go right in the near future - the Mueller investigation, the New Congress, especially - it's important to remember that these things haven't happened yet.

    So let's not uncork that bubbly just yet, eh? It's gonna be a long holiday season this year.

  11. [11] 
    nypoet22 wrote:
  12. [12] 
    Kick wrote:

    JL
    11

    http://www.pbcommercial.com/opinion/20181129/mckee-cartoon-witch-hunt

    Lying to Santa Mueller will net little Donny "Two Scoops" of coal (props to TS), but no worries since The Don hires only "the best people" and is assured repeatedly by them that the "witch hunt" will be over by Christmas...

    2017! ;)

    Stop me if you've heard this, but there are multiple sealed indictments, and these shits will either make deals with Mueller or die in prison for what they've done. Buckle up for Little Donny Two Scoops throwing Junior Little Donny and Eric the Stupid One under the train tracks. :)

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