By Todd Smith | The Caledonian Record
Last week the United States Supreme Court ruled that governments at all levels (local, state, federal) were subject to constitutional protections against excessive fines. The ruling will significantly hinder civil forfeiture programs under which police seize property from people if they are suspected of having gained said property from criminal activity.
The case “involved Tyson Timbs of Marion, Ind., whose $42,000 Land Rover SUV was seized after his 2015 arrest for selling a couple hundred dollars’ worth of heroin,” according to the Washington Post report.
“This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,” Justice Clarence Thomas wrote.
The unanimous finding by the High Court extends the Eighth Amendment — “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — to local and state governments.
In our opinion it was long overdue and will hopefully end long-running abuses and twisted incentives for police to fund operations through forfeiture programs. We came to think of the programs as state-sponsored theft.
At the federal level those abuses received official sanction in 2017 under former United States Attorney General Jeff Sessions. He announced, in July of that year, an edict for police to increase their seizures of cash and property under federal asset forfeiture rules.
“Especially for drug traffickers,” Sessions said in his prepared remarks for a speech to the National District Attorney’s Association in Minneapolis, reported by the Washington Post. “With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.”
Few would dispute Sessions’ conclusion that “no criminal should be allowed to keep the proceeds of their crime.” The problem with federal (and many state) forfeiture laws, as the Post explained, is “mere suspicion of wrongdoing is enough to allow police to seize items permanently … [and] many states allow law enforcement agencies to keep cash that they seize, creating what critics characterize as a profit motive.”
The feds, of course, are really good at seizing assets. According to a 2015 report from economist Martin Armstrong, “Law enforcement took more stuff from people than burglars did in 2014.” Thieves stole just under $4 billion worth of goods compared to over $5 billion that federal law enforcement agencies seized in assets.
Government taking has exploded since the advent of police forfeiture laws. “Between 1989 and 2010, U.S. attorneys seized an estimated $12.6 billion in asset forfeiture cases,” Armstrong explains. “The growth rate during that time averaged +19.4% annually. In 2010 alone, the value of assets seized grew by +52.8% from 2009 and was six times greater than the total for 1989. Then by 2014, that number had ballooned to roughly $4.5 billion for the year, making this 35% of the entire number of assets collected from 1989 to 2010 in a single year.”
In an amicus brief in the Timbs case, the ACLU said “in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures.”
It’s terrifying but hardly surprising. We know, from well-documented abuses of forfeiture laws, that a very real danger exists in providing twisted financial incentives for government authorities to seize citizens’ property.
In 2015 the Washington Post published an illuminating opinion penned by former directors of the Justice Department’s Asset Forfeiture Office John Yoder and Brad Cates.
“Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses,” they wrote. “Law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than on an even-handed effort to enforce the law.”
Yoder and Cates concluded that the federal asset forfeiture “turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.” And they would know.
It’s gotten insidious enough that former Justice Department head Eric Holder (under Obama) called for massive reforms before yielding his seat to Sessions.
Prior to last week’s Supreme Court ruling, 13 states had already gotten wise to the racket and made pivots to better protections of private property and due process.
In 2016, for instance, New Hampshire passed a law that reformed the way the state handles asset forfeiture cases. Prior to passage of SB22, state law enforcement agencies could seize assets and property from anyone suspected of criminal activity. There was, therefore, a financial incentive for police to seize assets and the process pre-required neither criminal charges nor prosecution.
SB22 raised the bar. Now asset forfeiture can only follow criminal convictions and only when “clear and convincing” evidence exists tying seized assets to the criminal enterprise.
The law was a step in the right direction for a state whose old forfeiture law got a D- from the Institute of Justice. But we didn’t think it went far enough to protect citizens’ property.
N.H. police directly seized $1.5 million worth of ill-gotten goods since 1999, according to the Daily Signal. Over the same period of time, the state received more than $17 million from the “equitable sharing” program administered by the United States Department of Justice.
Under that program “property seized by state and local law enforcement agencies can be transferred to federal officials for forfeiture under federal law,” the Signal reports. “The original seizing agency may then expect to receive up to 80 percent of the proceeds, which must be spent by that agency for law enforcement purposes.”
So as much as we applauded the spirit of N.H. SB22, we thought it was largely symbolic. We thought the only real protection would be to eliminate perverse financial incentives for federal and state law enforcement agencies to confiscate private property.
We’re hopeful that last week’s High Court ruling is a step in the right direction.
Todd M. Smith is the publisher of the Caledonian Record, where this editorial first appeared. He lives in St. Johnsbury.