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What exactly counts as an excessive fine under the constitution?

On behalf of Dolan + Zimmerman LLP April 12, 2019

“I want my truck back. I’ve always wanted it back.”

When an Indiana man was caught selling a small amount of heroin, he accepted that he would be charged with a crime. He accepted it when he was convicted and sentenced to a period of house arrest and then probation. What he could not accept was that the police seized his $42,000 Land Rover.

The police said the SUV was connected to the drug transaction and was therefore subject to forfeiture. While many people are unaware of civil forfeiture, police and prosecutors have been using the process for years to strip money and property away from criminal defendants.

All that is required is for the police or prosecutor to make a showing that the money or property was involved in, or were the proceeds of, criminal activity. They can then seize the property. The owner then has to prove that the money or property actually wasn’t connected to crime. If the owner fails to prove that — and most do — the seized cash or assets go to the agency that seized them.

Since civil asset forfeiture was allowed in drug cases in the 1980s, billions of dollars in cash and property have been seized. Their value usually goes directly into the budget of the agency that took them, so critics call this “policing for profit.”

There is a new development in civil forfeiture, however: Recently, the Supreme Court unanimously ruled that civil forfeiture constitutes a fine, and that the Eighth Amendment to the U.S. Constitution prohibits excessive fines.

It happened in the Indiana man’s case, but he still doesn’t have his Land Rover back. That’s because the Supreme Court didn’t actually say that forfeiting a $42,000 SUV was an excessive fine in a minor drug case — even though the actual fine allowed in the case was only $10,000. The Supreme Court didn’t define what constitutes an “excessive fine” at all.

How will we know what counts as an excessive seizure?

Experts disagree on how helpful the Supreme Court ruling will be. Some say it merely created a “legal skeleton” with no meat on its bones. If so, additional cases throughout the courts will be needed to flesh out the ruling.

Others say the ruling is already helping. One Georgia lawyer told NPR that the ruling helped him negotiate the return of a client’s moped, which had been seized in connection with a minor drug crime.

For now, defendants will have to hope that police and prosecutors take the Supreme Court ruling to heart. Otherwise, criminal defense attorneys may be spending a lot of time fighting excessive seizures in court.