Ding Dong! Could the Witch (Civil Forfeiture) be dead?
In June 2018, the U.S. Supreme Court granted certiorari in Timbs v. Indiana, 138 S.Ct 2650 (June 18, 2018), to decide whether the Excessive Fines Clause applies to state civil forfeiture matters. Timbs was forced to forfeit his $40,000 Land Rover in a civil forfeiture matter to the State of Indiana, after he pled guilty to selling less than $200 worth of drugs. Timbs argued that forfeiting the Land Rover would violate the Eighth Amendment’s ban on “Excessive Fines.” The trial judge agreed and rejected the forfeiture as “grossly disproportional.” State v. Timbs, 62 N.E. 472 (Ind. App. 2016.) The Indiana Supreme Court reversed that decision. The court held that the Constitution’s Excessive Fines Clause provided no protection to Indiana defendants because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment. State v. Timbs, 84 N.E.3d 1179 (Ind. 2017). Oral argument is set for November 28, 2018.
Civil asset forfeiture laws are powerful tools that allow States and the federal government to seize assets, both tainted, and untainted, without any kind of an adversarial hearing. Between 2012 and 2017, law enforcement in Arizona seized over $200 million in personal property from many people who were never charged with crimes. See https://azcir.org/news/2017/01/10/arizona-asset-rico-seizures-net-200m-in-past-five-years/. Most forfeitures in Arizona are never contested. See for example Attorney General Seizure Report, third quarter 2018, http://www.azcjc.gov/fy18-seizure-and-forfeiture-report-3rd-qtr(showing that all Attorney General forfeiture matters during this period were either not contested, or were resolved via a plea agreement.)
Assets can be seized if the State simply establishes probable cause, a very low threshold. Civil forfeiture defendants do not have the same protections that they would be afforded in a criminal case. They do not have the right to counsel, the presumption of innocence, nor must the State prove its claims beyond a reasonable doubt. See generally A.R.S. 13-2314. Most defendants, whose bank accounts are frozen, cannot afford to hire an attorney. If they are fortunate enough to be able to retain an attorney, most lawyers, including criminal defense lawyers, are not skilled in civil forfeiture. Vast experience is needed to navigate the various pitfalls associated with parallel criminal and civil proceedings. Nine times out of ten, defendants forfeit their assets, either because they are unfamiliar with the stringent rules associated with filing a claim, or they enter “cash for freedom” agreements to avoid being prosecuted.
There is little, if any, equality in bargaining power in civil forfeiture cases. Some have even suggested that Civil Forfeiture laws may be unconstitutional. See https://harvardlawreview.org/2018/06/how-crime-pays-the-unconstitutionality-of-modern-civil-asset-forfeiture-as-a-tool-of-criminal-law-enforcement/. Just last year, Justice Clarence Thomas wrote a scathing concurrence in a civil forfeiture matter when the Supreme Court declined to hear the case of Lisa Olivia Leonard, who had over $200,000 in cash confiscated from a traffic stop in Texas. Leonard v. Texas, 137 S.Ct. 847 (March 6, 2017, J. Thomas concurring). “This system,” Thomas wrote, “where police can seize property with limited judicial oversight and retain it for their own use— has led to egregious and well-chronicled abuses,” citing various examples and the eye-opening article written by Sarah Stillman. Id. at 848 citing Stillman, Taken, The New Yorker, Aug. 12 & 19, 2013, pp. 54–56.
Thomas further criticized how “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” who in turn are “more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.” Id. Thomas notes that Leonard’s Petition, “asks an important question: whether modern civil forfeiture statutes can be squared with the Due Process Clause and our Nation’s History.” Id. at 847. Because Leonard raised the due process issue for the first time in her Petition, however, certiorari was denied. Id.
Justice Thomas’ concurrence in Leonard may be a preview of what is to come in Timbs. There is little consistency amongst the circuits when it comes to the proportionality of forfeiture, which may have caused the Court to accept certiorari in the first place. Timbs has attracted amicus briefs from prestigious groups such as the Cato Institute, American Civil Liberties Union, Southern Poverty Law Center, NAACP, Constitutional Accountability Center, and Pacific Legal Foundation. All have expressed concerns about the potential for perversion of the justice system in light of the revenue generated for state and local government from forfeiture. The Excessive Fines Clause was designed to curb these types of abuses. Could it be that the high court is looking for some way to limit government’s vast ability to cripple defendants right out of the gate? We will see in November.
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