The U.S. Supreme Court ruled in 2018 that the Eighth Amendment’s prohibition on excessive fines and fees applies to states under the incorporation doctrine. In the underlying case that triggered the ruling, Indiana police had seized a Land Rover from Tyson Timbs for a minor drug crime.
But while the Supreme Court ruled that states are bound by the Eighth Amendment, the Justices left it up to state courts to determine what constitutes an excessive fine. Wesley Hottot, an attorney for the Institute for Justice, a public interest law firm, says the Timbs ruling revived the largely moribund Excessive Fines clause, especially regarding civil asset forfeiture, which allows police to seize property suspected of being connected to criminal activity.
“We see courts being more careful about this than they would have been prior to Timbs,” Hottot says. “We see people raising the [excessive fines] defense more frequently than they did prior to Timbs, and I think it’s a matter of time until it goes back to SCOTUS to decide for Eighth Amendment purposes when forfeitures are excessive.”
In the years since Timbs, state courts have been grappling with how to determine when a seizure or fine goes too far. For example, the Montana Supreme Court ruled in 2019 that the state’s law mandating drug fines equal to 35 percent of the street value of the drug violated the Excessive Fines Clause. This September, the South Carolina Supreme Court upheld the state’s forfeiture laws, reversing a lower court ruling striking down the state’s forfeiture procedures on their face, despite well-documented evidence of abuse, and leaving any possible reforms to the state legislature.
However, not all states are taking such a thoughtful approach. Take the case of Gene Parnell Taylor, a Washington man driving across the country in an RV. Mississippi police pulled Taylor over in 2018 and seized $153,000 that they found in his RV. There is nothing illegal about traveling with large amounts of cash. Taylor’s only crime was possessing a THC vape pen—a misdemeanor offense—but police determined, and prosecutors successfully argued, that Taylor’s suspicious activity fit the pattern of a drug trafficker, which, under Mississippi’s civil asset forfeiture laws, entitled police to keep all of his money.
In a criminal case, the burden of proof is on the state to prove its case, but civil asset forfeiture flips the presumption of innocence on its head. Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, and the owner bears the cost and burden of arguing in court that his or her property is innocent.
Groups like the American Civil Liberties Union and the Institute for Justice argue this process is unfairly tilted against property owners. Several states have reformed their forfeiture laws to require a criminal conviction before property can be forfeited. But not Mississippi, which operates an aggressive asset forfeiture regime.
In Taylor’s appeal, his lawyer argued that the seizure of such a large amount of cash just for fitting the profile of a drug courier and misdemeanor possession of drug paraphernalia—which carries a maximum sentence of six months in jail and a $500 fine—was “wildly disproportional and excessive to Taylor’s culpability, thus violating the Eighth Amendment’s Excessive Fines Clause.”
However, this September a Mississippi appeals court upheld the seizure, ruling that “Taylor presented no evidence that the money belonged to him except for his own testimony, which lacked credibility.”
Those sorts of big-number cash seizures are certainly one way to look at excessiveness, but the size of the seizure is not the only measure. Many of the most abusive asset forfeiture cases involve police seizing low dollar amounts or cars from people while never charging them with a crime.
“I think a lot of people regarded the excessive fines clause as only applying to sort of rough justice, something north of half a million dollars, which is really perverse because we know that the excessiveness that’s really happening on the streets is the low dollar amounts,” Hottot says. “It’s really when police are seizing a thousand dollars from someone who they really just allege is in the wrong neighborhood.”
For example, public records obtained by the Mackinac Center in Michigan showed that police seized thousands of cars in 2017 under the auspices of marijuana enforcement. Of the more than 2,500 vehicles seized, 473 were not accompanied by a criminal conviction; in 438 of those cases, no one was even charged with a crime. In 10 cases, the cars were seized under suspicion of a drug violation even though the records say police didn’t find any drugs.
After the Supreme Court ruling in Timbs, the Indiana Supreme Court created a three-prong test to determine excessiveness. That includes determining what effect forfeiting the property would have on the owner.
But it’s a careful balancing act, and strict proportionality is not a requirement. For example, in September, a divided Ohio Supreme Court upheld the state’s forfeiture law in a challenge from James O’Malley, whose 2014 Chevy Silverado was seized after his third DUI offense in a decade. The truck was worth $31,000 and his only real asset of any worth. The maximum fine for his offense was $850.
In a dissenting opinion, Ohio Supreme Court Justice Michael Donnelly wrote, “Surely, if the Excessive Fines Clause means anything, it means that the government cannot confiscate a defendant’s entire net worth when the maximum fine set by the legislature is less than one-tenth of the value of the forfeited asset.”
For now, state courts are still working their way through the implications of Timbs, but Hottot believes the issue will be back before the Supreme Court eventually.
“The law on when forfeitures are excessive is really just beginning to develop post-Timbs,” says Hottot. “And I expect that over the course of the next generation, there will be a national standard, a reckoning at SCOTUS, if you will, particularly about these low-dollar forfeitures of a thousand dollars or less, and in what circumstances cash can be treated as though it is presumptively criminal and therefore presumptively forfeitable. It really rings of more of a police state than I think a lot of people would be comfortable with, that you can just be stripped of your property based on nothing but one officer’s hunch.”