Indiana Justices Start To Clarify When Forfeiture Goes Too Far

By RJ Vogt | November 3, 2019, 8:02 PM EST

In a civil forfeiture case over Indiana resident Tyson Timbs’ Land Rover, the U.S. Supreme Court said that states can’t impose excessive fines. Last week, the Indiana Supreme Court outlined a test for determining excessiveness, siding with reformers who say the justice system’s revenue incentives must be reined in.


In a highly anticipated ruling last week, the Indiana Supreme Court outlined a test for determining when a civil forfeiture violates constitutional protections from excessive fines, coming down squarely on the side of reformers who argued that proportionality to both an underlying offense and the offender’s economic situation should be key factors.

The Oct. 28 decision followed a remand from the U.S. Supreme Court in Timbs v. Indiana , a dispute between Indiana resident Tyson Timbs and the government entities who took his Land Rover after he pled guilty to drug crimes.

At the nation’s high court, all nine justices held that the Eighth Amendment’s excessive fines clause applied to states, but they stopped short of outlining how a state should determine what counts as excessive. The task was left to Indiana’s top court, which ruled last week that only property instrumental to a crime can be taken via civil forfeiture — and even then, only after the proportionality of that punishment is considered.

“The owner’s economic means — relative to the property’s value — is an appropriate consideration for determining that magnitude,” the court ruled, in a majority opinion by Chief Justice Loretta Rush. “To hold the opposite would generate a new fiction: that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.”

The ruling left it to the trial court to determine whether taking Timbs’ SUV was proportional to his circumstances and drug dealing and conspiracy charges. In a statement, Sam Gedge, an Institute for Justice attorney who represents Timbs, said he looks forward to helping his client get his car back more than four years after it was taken.

“Civil forfeiture is one of the greatest threats to property rights today,” Gedge said. “The Indiana Supreme Court’s ruling marks an important step in curbing the worst abuses in this area.”

Concerns over the practice in which law enforcement can take property, often without even needing to prove a related crime, have been mounting in recent years. Since 2014, 33 states plus Washington, D.C., have reformed their civil forfeiture laws. Three states — North Carolina, New Mexico, and Nebraska — have abolished the practice entirely, relegating seizures to criminal law only.

The growing momentum for change, according to Marc Levin, vice president of Criminal Justice Policy at the Texas Public Policy Foundation, shows that civil forfeiture “is an issue that unites people across the political spectrum.”

He said conservatives are concerned about property rights and government overreach, while liberals are concerned about the disproportionate impact on people of color and the poor, not to mention the fact that getting one’s property back often requires civil litigation that not everyone can afford.

As evidence, Levin pointed to a January investigation by South Carolina’s Greenville News that found 65% of those targeted for civil forfeiture in the state are black men, a 13% subset of the statewide population.

It also found that roughly one out of five people who had their property taken were never charged with a crime and highlighted how the forfeited money finances law enforcement, with little oversight on how it’s spent.

Those revelations helped convince a South Carolina judge to declare the state’s practices unconstitutional in a bold August ruling. The first case Judge Steven H. John cited in the Aug. 28 order is the U.S. Supreme Court’s Timbs decision, and he went on to say that state laws fail to account for “the proportionality of the crime that may have been committed.”

“For example, South Carolina’s forfeiture statutes would allow law enforcement to seize millions of dollars in assets from an individual when the maximum fine authorized by law is minimal or when no crime has been committed at all,” he wrote.

Jimmy Richardson II, the local solicitor who brought the underlying forfeiture action on behalf of the South Carolina’s 15th Circuit Drug Enforcement Unit, has asked Judge John to reconsider his ruling. In an interview, Richardson explained that the $20,771 officers took from defendant Travis Green is very different than the lawless road seizures identified by the Greenville News.

“Green is sitting in prison for 15 years,” he said. “He has already been convicted, and the amount of money that was seized and that we are looking to give to the police is much less than the $150,000 fine amount allowed by statute.”

Despite his qualms about Judge John’s ruling, Richardson said he’s actually working with public defenders, prosecutors and legislators to rewrite the state’s civil forfeiture laws and address some of the injustices that “would give any prosecutor heartburn.”

A similar reform bill was floated earlier this year and failed to pass, but Richardson said his group’s proposal is more tailored to the state’s system: It would require government agencies to prove beyond a reasonable doubt that property was used in committing crime, and it would add oversight to prevent ad hoc seizures that never get properly booked.

“I could pass a dadgum polygraph on this: I had no idea that towns were taking little amounts of money and converting them without an arrest,” Richardson said. “I didn’t see that and I can see where that would be a problem.”

Although the South Carolina ruling lacks the weight of an appellate or state high court decision, Levin said it shows how “litigation can help enact change.” But for Lawrence Rosenthal, a professor at Chapman University Fowler School of Law and the author of an U.S. Supreme Court amicus brief supporting Indiana in the Timbs case, Judge John’s ruling “seems to have nothing to do with the actual facts of the case.”

In particular, Rosenthal said the judge mischaracterized law enforcement’s incentive for seizing property as a “profit motive.” In reality, Rosenthal said government revenue is a single pot.

“The more money available through forfeiture to law enforcement,” he said, “the less tax dollars from schools have to be diverted.”

Rosenthal, whose amicus brief was filed on behalf of the National Association of Counties and the National League of Cities, among others, added that both Judge John and the Indiana Supreme Court’s recent rulings failed to consider how difficult determining proportionality will be.

“It’s very difficult to tell how much a guy like Timbs made in trafficking drugs,” Rosenthal said. “So it really depends on how this test develops in the lower courts. Will it be sensitive to the way these guys can hide their assets?”

The answer remains to be seen, but for Lisa Foster, co-founder of the Fines and Fees Justice Center, the ramifications of last week’s decision in Indiana will extend far beyond civil forfeiture cases.

“The test that the Indiana Supreme Court developed for civil asset forfeiture is the test that will apply for fines as well,” she said, adding that it could also apply to court fees that are assessed, in part, as punitive measures. “This is a recognition of how one needs to look at money in the justice system — through a proportionality lens.”

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.