On February 20, the Supreme Court ruled unanimously to limit a key drug war policy that allows state and local law enforcement agencies to seize items or property that they deem connected to crime.
The Court has previously limited the ability of federal law enforcement to do the same.
The justices concluded that the eighth amendment’s prohibition on “excessive fines” also applies to states, under the due process clause of the 14th amendment. In the case at hand, law enforcement had seized a $42,000 Land Rover owned by plaintiff Tyson Timbs. The Supreme Court did not rule on the question of whether the seizure of the vehicle actually amounted to an “excessive” fine, leaving that up to lower courts. But they did say that it was “grossly disproportionate to the gravity of Timbs’s offense,” which included dealing in a controlled substance—heroin—and conspiracy to commit theft.
To be clear, the Court’s ruling does not ban outright civil asset forfeiture, a practice notorious for being abused for the financial benefit of public law enforcement.
“People are still going to lose their property without being convicted of a crime, they’re still going to have their property seized,” Timbs’s lawyer, Wesley P. Hottot of the Institute for Justice, told The New York Times. “The new thing is that they can now say at the end of it all, whether I’m guilty or not, I can argue that it was excessive.”
The Times article references two other cases, one involving a woman who was almost dispossessed from her home because an illicit drug sale occurred on her property, and another where a family in fact lost their house because of a drug purchase made by their teenaged son.
It’s no surprise that so many forfeitures are associated with cases involving drug charges. That’s because the war on drugs invented civil asset forfeiture as we know it today. In an amicus brief filed in the Timbs case, a coalition of organizations including the Drug Policy Alliance, the NAACP, and the Law Enforcement Action Partnership (LEAP)* noted that Congress developed the “federal asset-forfeiture regime” with the Comprehensive Drug Abuse Prevention and Control Act of 1970 in an effort to “cripple drug trafficking organizations and their kingpins.”
The Drug Enforcement Administration (DEA) claims it operates its current civil asset forfeiture program “to disrupt the financial dealings and dismantle the financial infrastructure of illegal drug traffickers.” Seized items often include firearms, computers, and vehicles. But it is unclear how some items seized are implicated in the “financial infrastructure of illegal drug traffickers.”
For example, the DEA and collaborating agencies seized huge sums of high-priced jewelry, totaling over $560,000 in the fourth quarter of 2018. Other items included “assorted televisions” and designer shoes.
But luxury items aren’t the typical seizure. Rather, the usual assets are mostly those of lower-value. That’s because low-income people and those indirectly involved in drug trafficking—rather than “kingpins”—are the ones swept into the DEA’s asset forfeiture program. And in around 80 percent of cases, the owner is not even charged with a crime.
“These days,” explains the amicus brief, “states do not seize the assets of drug kingpins (if they ever did), but of ordinary Americans, often with little or no connection to criminal activity. And, because the proceeds of a forfeiture proceeding often go to the enforcement agency itself, state agencies employ these proceedings as a mechanism for funding their operations—with assets seized predominantly from the poor and people of color.”
Additionally, DEA’s civil asset forfeiture program exploits the particular circumstances of the drug trade to maximize the value of assets seized. According to a Drug Policy Alliance report, California police were incentivized to carry out “cash grabs,” or in other words, to wait for the completion of a drug transaction to intervene. That way, the agency accrues cash, instead of drugs—which they’re required to destroy.
While some of the media reports on the Supreme Court’s decision may have over-hyped its significance, it is nevertheless an important step for the Court to recognize, as Justice Ginsberg wrote in the Court’s opinion, that “[p]rotection against excessive punitive economic sanctions […] is, to repeat, both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.'”
* LEAP is the fiscal sponsor of The Influence Foundation, the nonprofit organization that operates Filter.
Image: US Capitol via Flickr