The 8th Amendment Case Against Civil Asset Forfeiture

The Supreme Court has agreed to look at whether the 8th Amendment clause forbidding “excessive fines” applies against the states.

The case in question involves the controversial practice of civil asset forfeiture. Tyson Timbs was convicted and served time and paid fines for selling a small amount of drugs to an undercover officer. The state also launched a civil asset forfeiture case against his car:

…But the trial court ruled against the government. Because taking Tyson’s car would be “grossly disproportionate” to his offense—for which Tyson had already been punished—the trial court held that the forfeiture would violate the Excessive Fines Clause of the Eighth Amendment. The Indiana Court of Appeals agreed. Tyson suffered from drug addiction, the court noted, but his only record of dealing was selling a small amount of drugs to undercover police. The court also noted the “financial burdens” that Tyson had already faced when he pleaded guilty. Taking his car on top of all that would violate the Eighth Amendment.

Then the Indiana Supreme Court stepped in. Breaking with at least 14 other state high courts, the Indiana Supreme Court ruled that the Eighth Amendment provides no protection at all against fines and forfeitures imposed by the states.

…“This case is about more than just a truck,” said Wesley Hottot, an attorney with the Institute for Justice. “The Excessive Fines Clause is a critical check on the government’s power to punish people and take their property. Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

The case has potentially very wide application, far beyond civil asset forfeiture, because municipal governments desperate for revenue are criminalizing and fining minor infractions (see also my posts on Ferguson, MO and here)

Hilda Brucker went down to the municipal court in October 2016 after receiving a phone call. She hadn’t received a formal summons or known of any wrongdoing; instead, she thought she needed to clear a ticket.

But when she arrived at the Doraville, Georgia, courthouse, Brucker said she was placed before a judge and prosecutor who accused her of violating city code — because of cracks in her driveway.

She was fined $100 and sentenced to six months criminal probation, even though this was the first time she was made aware her driveway was considered a problem.

…About 25 percent of Doraville’s operating budget is reliant on fees and fines, according to IJ, a nonprofit law firm. From August 2016 to August 2017, it raked in about $3.8 million in fines, according to IJ’s lawsuit.

“It’s unconstitutional because it creates a financial incentive for the city government … to ticket people,” Josh House, an IJ attorney on the case, told Fox News. He said people in the town were being “punished” for the condition of their property by having to “fund the Doraville city government.”

The Institute for Justice is doing great work.


It’s mystifying that the SC hasn’t stopped the practice of government seizure of assets in drug cases when the property was not acquired from the sale of drugs. The financial incentives to confiscate all assets unrelated to a crime is enormous. This is a major reason why states and law enforcement never want to see legalization of marijuana and other drugs. Hopefully, the SC will put an end to this practice.

Two problems with Asset Forfeiture. It is unconstitutional as applied. It benefits the institution that decides the case thus leading to abuse.

Well said. You will note that in the early 1990s, when the prestigious NYC law firm of Kaye Scholer had their money seized from a drug dealer they were representing, and consequently threatened with a cash flow bankruptcy (since it was not just the money seized but the lines of credit that dried up), the litigation quickly went to the Supreme Court, who said to the government that they would affirm the conduct for this particular case but that law firms should not be targeted in the future (on 6th Amendment grounds). And indeed, law firms were largely spared going forward. Once again, the law is not blind when it comes to lawyers (if I was a lawyer I could in certain jurisdictions and circumstances get censored for saying that BTW).

Bonus trivia: the right to counsel was not applied to state prosecutions for felony offenses until 1963 in Gideon v. Wainwright, 372 U.S. 335 (1963).

“fund the Doraville city government.”
Not regarding seizures , but an example regarding funding city govts,
I live in a town in WA that has a large number of red-light cameras. receiving a ticket for a turn on red and feeling confident that the video evidence presented with direction of traffic would confirm that i turned on a Protected Green , I went to the Municipal court on the appointed day.
50 people and only 1 of the 2 Judges on duty , so he announced that he would be shuttling between the 2 rooms , but announced 50% off the fine for those willing to pay without contesting. So choice was to pay up or waste 4 to 6 hours to save the 50%.
And of course most paid up.


Supreme Court to consider challenge to

States Rights.

Does the federal judiciary want to be a court of review for state court fines and penalties.

Just putting the other side out there for you to consider, not that I agree with it, since the Court had earlier applied part of the eighth amendment to the states.

I think the court has challenged states' rights before. Maybe you've heard of Brown v. Board, for example.


I guess you didn't know that the 14th amendment to the Constitution, by its own terms, applies to the states, whereas the 8th amendment is silent.

It's not a "states right" if the Constitution directly by its terms limits what a state can or cannot do, and how it must treat its citizens.

But, why would you know this. Maybe you've never heard of the 14th Amendment.

Byo, I assume that you also did not know that Brown was decided under the 14th amendment either.

I don't get your point. You admit that the court has applied the 8th to the states before, so what's the big deal here?

Here's a link for you to read, but basically parts have been applied, and others have not--but, you should have figured that out, shouldn't you, when something gets appealed to the Supreme Court, there is obviously an issue which needs to be resolved as to the scope and interpretation, and also whether that part applies to the state and how that part should be interpreted, if extended, given deference between the state and federal government. (There are also issues of federal courts becoming an appellate court to state decision and penalties in civil cases, and non-capital offenses)

Anyway, here is one link:

Well, the confiscated are and fined should nevertheless go to the same entity that impress them. Not even processing fees, fuel surcharge, and such. Otherwise it is a blatant conflict of interest.

Sorry for the gibberish. Bad autocorrect.

I wanted to say that fines, confiscation should never, ever go to the party that levies them. Not even processing fees related to the fines.

True, but it's all going the state/local government regardless, so it's going to be contaminated by incest no matter what.

If traffic fines were earmarked to pay off the national debt, we might be onto something. But good luck with that.

Well the point is to make the entities imposing the fine have no perverse incentive to inflate the fine but rather use it for safety or adequate punishment

The way to remove incentives is to make sure any confiscated cash goes to an entity that the powers that be and/or the ones doing the confiscating universally hate.

It should also be expensive in terms of time and money to confiscate cash. Not only should any expenses incurred in doing the confiscating not be reimbursed, any confiscation should require copious amounts of paperwork. And strict deadlines for submitting all the paperwork.

Requiring posting a bond with a value of a suitable percentage of the confiscated amount would be a nice touch. This would dissuade frivolous confiscating and compensate the victims for the loss of their assets if the confiscation is overturned.

So who do these cash thieves hate enough to be the recipient of any stolen assets?


Or we could just do away with civil asset seizure.

Lesson here is that local/state/federal courts cannot fairly adjudicate simple constitutional issues when a government entity is a primary party to the case. This should never have reached SCOTUS level in a just world.

"Judges" at any level are merely legal bureaucrats employed by the government with a primary bias toward their employer.

I still can't figure out why the underlying rationale of Tumey v. Ohio doesn't work: "Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." The case had specifically to do with justices of the peace sticking fines assessed against defendants in their own pockets but more broadly had to do with incentives and the purpose of fines. American law enforcement and associated fines weren't instituted in order to shake down the citizenry and enrich local government Sherriff of Nottingham-style. Anything that incentivizes such behavior violates the constitution.

The existence of asset forfeiture puts the US into the class of a banana republic. It can't help but lead to stuff like this. Cops stole from people without personal consequences, as is usually the case. The taxpayers pick up the settlement for police criminal activity. None of the stipulated reforms have actually taken place.

Law enforcement uses civil asset forfeiture far more than cities, not only to confiscate property but as leverage to intimidate innocent people to confess to crimes they did not commit. I'm not complaining about Tabarrok's post (I agree that forfeiture is abused), but he is using an isolated case of forfeiture to make his case against government, when the problem is with law enforcement not civic government.

This is desparate. Your god is evil. Police work for civil government. If you can’t hold civil government accountable, you can’t hold police accountable.

Good fucking grief, Rayward- who employs the damned police?

Wait their argument is that the 8th doesn't apply to the States? "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Does that mean if they win, states and municipalities will also be free to dole out cruel and unusual punishments? I predict that SCOTUS will rule 9-0 against this particular argument, and thus probably also against the Indiana government in this particular case.

Here is Indiana's argument:

The 14th, Due Process, is interpreted as the states guarantee the first ten amendments, as needed. Nothing stops a local government from funding itself with license and fees. But the excessive part holds, the asset cannot be taken after a previous fine fulfilled.

Since when is social justice an economics forum question? Fogel, Robert William and Engerman, Stanley L., for example, presumably examined slavery to see if it's economically advantageous, not for social justice reasons (not read them except through secondary sources, but that's my understanding). Here, poor people are an easy form of revenue for the state, and it's well known that states collect money from stuff like 'speed traps' (I myself got a ticket for being 5 mph over the limit in an inactive school zone for example, in a rural part of Texas where I was told this is common, only the second ticket ever). So how is asset forfeiture any different from a speed trap or aggressive parking meter enforcement designed to raise revenue?

AlexT should come clean and admit he's into social justice more than economics.

Indiana, or the town in question, is going to lose this case, and it should be 9-0. I don't think trying to argue this as a state's right case is going to work even with the conservatives on the court. The only argument that might hold up is that this fine wasn't excessive, but on its face it is excessive given that the man had already plead out and payed a separate fine.

SCOTUS has ruled that not even innocence is justification for stopping the execution of someone convicted based on racial or social malice and sentenced to death.

Justice Kennedy became "troubled" by this prospect, but never found a reason to act to protect all persons from this outcome.

And Trump still thinks the four innocent kids finally freed from long prison terms for rape in central park were not punished harshly enough, that his full page ad calling for this is still valid, so expect the new court to rule in favor of unjust treatment of poor, non whites and women.

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