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Editorial: Seize chance to limit excessive forfeitures

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U.S. Supreme Court justices have an opportunity to make it harder for states to seize the property of private citizens. They should seize it now.

Court observers appeared hopeful, based on justices’ comments and questions last Wednesday during oral arguments in Timbs vs. Indiana, that a majority is ready to settle two key concerns regarding the practice known as civil forfeiture: Whether the U.S. Constitution’s Eighth Amendment excessive fines prohibition applies to state government seizures. And if it does, how courts can determine what constitutes an excessive fine.

Justice Neil Gorsuch seemed to answer the first question definitively when he told Indiana Solicitor General Thomas Fisher, “Can we just get one thing off the table? We all agree that the excessive fines clause is incorporated against the states. … Can we at least agree on that?”

The harder question is whether the court will offer guidelines to determine when a fine is excessive.

Some justices were ready to apply that term to the case of Tyson Timbs, whose $40,000 SUV was seized by the government after he was convicted of selling a few grams of heroin worth $260.

Timbs argued that the seizure constituted an excessive fine because the SUV was valued at more than four times the maximum fine allowed by Indiana law, and 30 times more than the fine he actually paid for a crime for which he served home detention.

Bipartisan critics of over-reaching forfeitures can point to countless cases where the “punishment” of forfeiture did not fit the crime. For example, the case of a Moline grandmother whose car was seized after her grandson was arrested for driving it on a suspended license was among those used to convince Illinois lawmakers to increase the burden of proof for seizing property and to make it easier for innocent Illinoisans to get their property back.

But new laws in this and other states have not addressed whether the federal constitutional prohibition against excessive fines applies to forfeitures in all 50 states.

Why does that matter? Indiana’s solicitor general inadvertently illustrated why all Americans should fear the wide-ranging power of state government to seize citizens’ personal property.

When Justice Stephen Breyer asked Fisher if he believed cash-hungry states could legally pass laws to seize the cars — luxury or otherwise — of motorists caught driving five miles over the speed limit, Fisher said yes. That would take “policing for profit” to ridiculous and unacceptable levels.

Among those worried by the increasing application of government forfeiture is Justice Sonia Sotomayor. She warned justices last week that merely applying the Eighth Amendment to the states would “have no effect on anybody” unless the court offers guidance for what counts as excessive fines.

A reasonable conclusion. But it’s far from certain that enough justices can be convinced to do so; for example, Chief Justice John Roberts, who took pains to point out that Timbs’ vehicle was seized because there was no question that it had been used in the commission of a crime. That, and the fact that the Roberts court has been reluctant to set broad precedents — for example, punting on partisan gerrymandering — is worrisome.

The good news is that the court has moved, however glacially, to apply other key parts of the Eighth Amendment to the states, including its ban on cruel and unusual punishment and excessive bail. It’s past time justices did so regarding excessive fines.

It’s too much to hope that the court’s ruling, due in June, will be the death knell for civil forfeiture overreaching. But by aggressively addressing excessive fines, justices can continue to chip away at abusive policing for profit to help shield Americans from the devastating impact of limitless fines.

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