Civil asset forfeiture: a constitutionally questionable practice

Civil asset forfeiture is a constitutionally questionable police procedure that has a large potential for abuse. This paper analyzes the constitutionality of the practice by applying Fourth, Fifth, and Eighth Amendment tests. I show that civil forfeiture violates the Fifth Amendment and due process protections by seizing property without convicting individuals of illegal activity. I also find that civil asset forfeiture violates Fourth and Eighth Amendment protections against both unreasonable seizures and excessive fines respectively by allowing for excessive and disproportionate punishments to crimes affected persons may never be convicted of. Next, I look at the contemporary debate over civil asset forfeiture policy and the changes that have been made in recent years at both the federal and state level, followed by an analysis of a current Supreme Court case in which the Court could determine new restrictions on the practice. Finally, I propose four key reforms to civil asset forfeiture programs which will make the practice more consistent with constitutional principles and protections. I conclude that the current use of civil forfeiture is unconstitutional and that reforms are both needed and constitutionally demanded.

CIVIL ASSET FORFEITURE: A CONSTITUTIONALLY QUESTIONABLE PRACTICE by Cody Jenkins A Senior Honors Thesis Submitted to the Faculty of The University of Utah In Partial Fulfillment of the Requirements for the Honors Degree Bachelor of Arts In Political Science Approved: ______________________________ James M. Curry, PhD Thesis Faculty Supervisor _____________________________ Mark Button, Ph.D Chair, Department of Political Science _______________________________ Ella Myers, PhD Honors Faculty Advisor _____________________________ Sylvia D. Torti, PhD Dean, Honors College December 2018 Copyright © 2018 All Rights Reserved ABSTRACT Civil asset forfeiture is a constitutionally questionable police procedure that has a large potential for abuse. This paper analyzes the constitutionality of the practice by applying Fourth, Fifth, and Eighth Amendment tests. I show that civil forfeiture violates the Fifth Amendment and due process protections by seizing property without convicting individuals of illegal activity. I also find that civil asset forfeiture violates Fourth and Eighth Amendment protections against both unreasonable seizures and excessive fines respectively by allowing for excessive and disproportionate punishments to crimes affected persons may never be convicted of. Next, I look at the contemporary debate over civil asset forfeiture policy and the changes that have been made in recent years at both the federal and state level, followed by an analysis of a current Supreme Court case in which the Court could determine new restrictions on the practice. Finally, I propose four key reforms to civil asset forfeiture programs which will make the practice more consistent with constitutional principles and protections. I conclude that the current use of civil forfeiture is unconstitutional and that reforms are both needed and constitutionally demanded. ii TABLE OF CONTENTS ABSTRACT ii INTRODUCTION 1 HISTORY OF CIVIL FORFEITURE 2 VIOLATIONS OF DUE PROCESS 6 VIOLATIONS OF FOURTH & EIGHT AMENDMENT RIGHTS 11 CONTEMPORARY CONTROVERSY 17 TIMBS V. INDIANA 21 IMPLICATIONS AND REFORMS 24 CONCLUSION 28 REFERENCES 29 iii 1 INTRODUCTION The American judicial system faces an important constitutional question. Over the past few decades, there has been a drastic increase in the use of a police practice known as civil asset forfeiture. This is a process by which police officers and other law enforcement officials can seize property they determine to be related to alleged criminal activity. Subsequently said property can be filed for forfeiture (Carpenter, Knepper, Erickson, & McDonald, 2015, p. 12). Civil forfeiture is different from criminal asset forfeiture in that under criminal forfeiture cases, the forfeiture is in personam, or action against a person. This contrasts with civil forfeiture which is in rem, or action against an object (Challener, 1996, p. 197-198). In cases of in personam, the defendant has the right to constitutional protections, a sharp contradiction to the lack of rights granted to possessions. To illustrate the drastic increase in the usage of civil forfeiture over the past several decades, one can look at the massive jump in value of assets seized. For example, the total value of assets seized in the DOJ’s Assets Forfeiture Fund was $93.7 million in 1986, or about $209.6 million when considering inflation. By 2014 that number had exploded to $4.5 billion (Carpenter et al., 2015, p. 9). This statistic highlights the rapid growth and expansion of this practice in recent years. The staggeringly large value of assets seized also indicates the importance of ensuring that this practice is being used fairly and within the strictest limitations. Unfortunately, that is not the case. In this thesis, I argue that modern civil forfeiture is being used in an unconstitutional and unethical way. In what follows, I make this case in several steps. First, I analyze the legal history and evolution of civil forfeiture and demonstrate how 2 certain legal decisions created precedents leading to the current constitutional debate. Second, I outline why the practice as applied now is unconstitutional, arguing that it violates Americans’ Fifth Amendment rights to due process, Fourth Amendment protections against unreasonable search and seizure, and Eight Amendment protections against excessive fines. Third, I outline present policy regarding civil forfeiture and the role of the U.S. Attorney General in the policy debate, as well as analyze the potential for reform offered in the current Supreme Court case, Timbs v. Indiana. Finally, I conclude by reflecting on my findings and proposing several possible ways the practice can be reformed to make it both constitutionally sound and more ethical. History of Civil Forfeiture In order to understand why modern civil forfeiture is unconstitutional it is important to look at the legal evolution of the practice. American in rem forfeiture can be traced to colonial America when customs officials seized cargo and ships to enforce the Navigation Acts implemented by the British crown (Challener, 1996, p. 200). This form of forfeiture was used solely to allow for confiscation if proper taxation under the Navigation Act was not paid in full. This was the standard until the 1827 case of The Palmyra, a ship accused of committing piracy. Neither the captain nor crew were convicted of piracy, however the forfeiture of the ship was upheld by the U.S. Supreme Court as an in rem forfeiture. The court argued that the ship itself was guilty of piracy independent from any in personam convictions (The Palmyra, 1827). This case created a pivotal turn for in rem forfeiture. The decision created what many legal scholars describe as a “legal fiction,” according to which the property itself is the defendant rather than the 3 actual property owner (Harrington, 1994, p. 285). This transformation of civil forfeiture from a practice in which the government was “protecting and regulating its revenue” to a legal fiction is key to understanding how civil forfeiture has evolved into the dilemma it is today (Challener, 1996, p. 201). This legal shift was further cemented in 1844 in the case of United States v. Cargo of the Brig Malek Adhel. In this case, the captain of the Malek Adhel committed piracy unbeknownst to the actual owners of the vessel. Despite their lack of knowledge and consent, the Court upheld the forfeiture under the standards established by Palmyra. The court concluded that the vessel itself was an “offender” and thus the forfeiture was justified (United States v. Cargo of the Brig Malek Adhel, 1844). Brig Malek Adhel and Palymra are important structural foundations for the legal precedent upon which modern civil forfeiture rests. These cases marked the beginning of the transformation of the “guilty property” fiction that shapes modern forfeiture cases. Two decades following the Malek Adhel decision, during the Civil War, Congress passed a series of Confiscation Acts. These acts were designed to combat the rebellious southern states by seizing the Confederacy’s property holdings or holdings of Confederate supporters. The original intent of the Acts was to confiscate property from the South, thus depriving them of resources, as well as to use said confiscated resources to the North’s advantage (Syrett, 2005, p. 11). These laws were upheld by the U.S. Supreme Court, creating the government’s ability to forfeit property even when criminal proceedings against the owners themselves could not be established (Challener, 1996, p. 202). 4 The guilty property idea came full circle again when property was seized for violations of revenue laws, similar to the origins of civil forfeiture in colonial America. The U.S Supreme Court upheld the guilty property fiction once again in two cases, Dobbins’s Distillery v. United States (1877) and in J.W. Goldsmith, Jr.-Grant Co. v. United States (1921). In both cases innocent and unknowing property owners whose property was used in violation of revenue laws were victims to forfeiture. The U.S. Supreme Court cited precedence established by early cases like Palmyra to explain their decisions (Dobbins’s Distillery v. United States, 1877; J.W. Goldsmith, Jr.-Grant Co. v. United States, 1921). In the J.W. Goldsmith case, the court created yet another justification for civil forfeiture, in that the “government’s interest in preventing violation or evasion of its laws outweighed the innocent owner’s property interest.” In addition, the Court also noted that whether or not the reasons for civil forfeiture are “artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.” (J.W. Goldsmith, Jr.-Grant Co. v. United States, 1921) The Supreme Court once again solidified the legal fiction of its own creation by reaching these verdicts in both cases. In the 1970’s and 1980’s, civil forfeiture exploded in use as Congress passed a series of drug combating acts as part of the War on Drugs, including the Controlled Substance Act of 1970. These new laws allowed for the forfeiture of drugs, drug making materials, and conveyances (Controlled Substance Act of 1970). The expansion of forfeiture continued in the coming decades. In the early 1990s, the Supreme Court ruled on several forfeiture cases that further defined today’s legal standard. Of these recent 5 cases, two stand out as key to framing the contemporary approach to civil forfeiture: Austin v. United States and Bennis v. Michigan. Austin v. United States is a 1993 case in which the Supreme Court considered whether the Eighth Amendment applied to forfeiture and analyzed the guilty property fiction. They ruled that forfeiture is subject to Eight Amendment protections from excessive fines and that forfeiture is a punitive punishment (Austin v. United States, 1993). Because of this decision, it appeared as if the Court was going to reject the “guilty property fiction” and instead follow due process in order to hold the property owner more accountable (Challener, 1996, p. 206). Had this been true, it would have likely ushered in an era of increased protections for Americans and restricted the scope and power of asset forfeiture to a more constitutionally compatible state. This was unfortunately rendered ineffective by Bennis v. Michigan. Three years later, in Bennis v. Michigan, the Court gutted the decision reached in Austin. In Bennis, the Court decided that an owner’s property can be held available to forfeiture if it is entrusted to someone who uses it in illegal activity, regardless of whether they had a prior knowledge of their intent for illegal usage (Bennis v. Michigan, 1996). In reaching this decision, the Court relied on stare decisis, citing cases all the way back to Palmyra in which the owner’s innocence was irrelevant to the forfeiture. Bennis reverted all prior protections and reforms that Austin had indicated would be forthcoming. Following these cases, Congress in 2000 passed the Civil Asset Forfeiture Reform Act (CAFRA) in which Congress attempted to create meaningful reforms towards civil forfeiture. Instead, CAFRA allowed state and local officials to bypass the federal preponderance of the evidence burden of proof and participate in what is called 6 “equitable sharing” (Levesque, 2014, p. 79). This program allows law enforcement to seize property in conjunction with federal agencies, thus allowing law enforcement to apply federal standards regarding burden of proof, even if state law requires a higher burden. In addition, law enforcement now has a financial incentive to engage in civil forfeiture. Many states created laws allowing for unclaimed assets to be surrendered to law enforcement, allowing these agencies to use seized resources as part of their financial budgets (Levesque, 2014, p. 80). It is under the standards set by these court precedents and CAFRA 2000 that civil forfeiture now occupies a compromised and unconstitutional position in dire need of reform. VIOLATIONS OF DUE PROCESS In this section, I will outline how civil asset forfeiture violates the Fifth Amendment right to due process. This will be followed by an analysis of how civil forfeiture also violates both the Fourth and Eighth Amendment protections against unreasonable seizure and excessive fines and punishments. The Fifth Amendment to the U.S. Constitution provides several key protections to Americans. Of these, the clause “…nor be deprived of life, liberty, or property, without due process of law…” is fundamental to understanding why modern civil forfeiture is unconstitutional (U.S. Const. amend. V.). Mandatory due process is violated by the execution of modern civil forfeiture. The two key ways this is done is through the guilty property fiction and current requirements for burden of proof when approving forfeiture. 7 The guilty property fiction is the idea popularized by many modern legal scholars who claim the Supreme Court has created a “guilty property fiction” by holding inanimate objects accountable for illegal activities rather than the property’s owners (Harrington, 1994, p. 285). This fiction has been steadily cemented in American legal precedence from back in the 1800’s with the case of the Brig Malek Adhel and The Palymra. This guilty property fiction circumvents due process. Under the Fifth Amendment, Americans cannot be deprived of property without proper due process procedures. The guilty property fiction circumvents that guarantee by transforming inanimate objects into criminals. If the object itself is a criminal and committing illegal activity, it is not necessary to charge the property owner with a crime as well, which circumvents what should be a constitutionally protected procedural due process. Law enforcement circumvents the proper procedure in these cases, because even if they cannot punish an individual in criminal court they can do so in civil court. While this is not unprecedented, civil forfeiture should not be executed in this manner. Civil action following criminal accusations should be subject to equally high burdens of proof and constitutional protections as afforded in criminal procedures. According to the Fifth Amendment you must be charged and convicted of wrongdoing before you lose rights, but by creating this new legal fiction, this process can be subverted. This fiction has allowed law enforcement to seize property without obtaining an in personam conviction. Typically, the court must find a person guilty of criminal wrongdoing before depriving them of rights, however thanks to civil forfeiture they can circumvent this requirement, and seize the property as an in rem, thereby violating proper due process. This creates an issue in which the burden is on the property owner to prove 8 that the object seized was not intended for nor used in any illegal activity. Thus, contrary to due process it is now essentially on the “accused” to provide innocence rather than the government (Harrington, 1994, p. 290). This shifting of responsibility is highly problematic. Outside of the flagrant due process violations, it raises two additional problems that also impact due process. These problems concern the impact on indigent individuals and the right to legal counsel guaranteed by the Sixth Amendment. Forfeiture laws are complex and as a result legal counsel is often necessary to ensure the proper return of one’s possessions. This is especially true given the shifted burden upon the owner to prove the innocence of one’s property. This is disproportionately impactful upon the indigent. Lawyer’s fees can easily exceed the value of the property an individual is trying to win back. Research of available data indicates that the average value of over half the seizures in places such as Philadelphia are less than $192. Of these, less than three percent are contested because it is financially not worth the costs of the lawyers. Even if the property was wanted back, indigent individuals would not be able to afford the lawyer and court fees. (Carpenter, et al., 2015, p. 12; Crawford, 2015, p. 272). Even if the courts might have found the property innocent and reversed the forfeiture, the indigent are not afforded that opportunity. This leads to the second problem: unlike criminal trials, indigent defenders are not guaranteed legal counsel under the Sixth Amendment. The Sixth Amendment guarantees the right to “have the Assistance of Counsel for his defense,” a right that was further clarified in the case of Miranda v. Arizona (Miranda v. Arizona, 1966; U.S. Const. amend. VI). This right, however, does not extend to forfeiture cases. Since the object is the one accused rather 9 than an individual, the state is not obligated to provide legal defense as in typical criminal trials. This is because these forfeitures fall under civil courts, and not criminal ones. Yet some criminal protections need to be in place, including the right to an attorney. This is especially necessary since the government is placing the burden of proof on the individual to prove innocence, something the average person with no legal training is likely unable to do. Without granting indigent property owners the same protections found in criminal procedures, property owners are often left without resources and options and as a result, property is uncontested and surrendered, typically to local law enforcement. Seized property that went uncontested and was granted to law enforcement also creates an entirely new problem, discussed below. Next to the guilty property fiction, the second main way in which due process is violated is through the current established levels for burden of proof. With the implementation of CAFRA in 2000, the federal level for the initial burden of proof necessary to seize property in question was raised to a preponderance of the evidence (Levesque, 2014, p. 76). Since then, thirty-one states have set their levels at preponderance of the evidence (Carpenter et al., 2015, p. 16). For comparison, this is only one step higher than the bare minimum of probable cause, and a far cry from the beyond a reasonable doubt standard required of criminal convictions. Two states still require merely probable cause. The extraordinarily low standards required for law enforcement to seize property are shocking. In criminal cases, “beyond reasonable doubt,” a high standard, safeguards against potentially stripping an innocent person of their rights, freedoms, and property. No such due process is granted in these civil forfeiture cases, however. It is entirely possible for an individual to be acquitted of a criminal charge but 10 still lose property to civil forfeiture simply because the due process standards are not applied equally between the two (Carpenter et al., 2015, p. 16). These current laws regarding burden of proof not only undermine constitutional due process rights, but create another unethical, widespread problem: the program called equitable sharing. States have the right to set their own individual standards when it comes to burden of proof, with some having either lower or stricter requirements than the federal level of preponderance of the evidence (Levesque, 2014, p. 79). Through the equitable sharing program, law enforcement can bypass potentially stricter state laws and instead satisfy the lower federal standards to make the forfeiture (Levesque, 2014, p. 79). Law enforcement can do so thanks to the Comprehensive Crime Control Act of 1984, which allows state and local law enforcement officials to transfer forfeitures to federal agencies (Comprehensive Crime Control Act of 1984). Once under federal control, up to 80% of the proceeds from the seized goods can be shared with the original local law enforcement to use as they will (Carpenter et al., 2015, p. 25). Proceeds gathered from this practice can now be used to not only compensate wages, but also to provide gear and equipment that may not have been in the budget otherwise (Levesque, 2014, p. 80). This equitable sharing program is extremely concerning as it is creating a system in which law enforcement is reliant upon the funds raised from forfeitures. Data gathered by the Washington Post indicates that “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008” (Sallah, O’Harrow, Rich, Silverman, Chow, & Mellnik, 2014). This creates an ethical dilemma in which police are supposed to protect and serve the public yet are financially motivated to take advantage of civil asset forfeiture programs. This creates a system some legal 11 scholars have called “policing for profit” (Carpenter et al., 2015, p. 25; Levesque, 2014, p. 82). Research shows that law enforcement uses asset forfeiture for financial benefits. One study looked at state laws regarding the burden of proof necessary for seizures as well as what percentage law enforcement received from the proceeds and compared these figures to the amount of equitable sharing done in the state. The findings suggest that state laws that have a higher burden of proof and give a smaller percentage of funds to law enforcement are in fact not reducing the amount of forfeitures, but simply increasing the amount of equitable sharing done in the state (Holcomb, Kovandzic, Williams, 2011, p. 282). These findings support those of an earlier study (Kovandzic, Worrall, 2008, p. 237). These findings suggest that not only does law enforcement use forfeitures to their financial benefit, but that due process is actively being circumvented through the widespread use of equitable sharing programs. Research into this practice should be evidence to policy makers that the program is unconstitutional, and that civil forfeiture is being used to violate Americans’ constitutional rights. The ways in which equitable sharing allow law enforcement to ignore state’s rights and due process prove that it must be either abolished as a practice or be heavily reformed. Perhaps if federal seizures were held to individual state standards, the practice would be more in line with constitutional principles, but as of now it stands in flagrant violation to constitutional protections. VIOLATIONS OF FOURTH & EIGHTH AMENDMENT RIGHTS In addition to violating Fifth Amendment protections, civil forfeiture often infringes upon both Fourth and Eighth Amendment rights. Civil forfeiture infringes upon 12 the Fourth Amendment’s right against “unreasonable search and seize”, as well as the Eighth Amendment’s protections from “…excessive fines imposed…” (U.S. Const. amend. IV; U.S. Const. amend. VIII). The United States Supreme Court and lawmakers have historically been hesitant to place government limitations on what law enforcement can seize using civil forfeiture. Lawmakers’ hesitance to pass laws restricting law enforcement powers allows states such as Pennsylvania to permit law enforcement to seize hundreds of houses and thousands of vehicles (Brown, 2014). The courts have failed to uphold these constitutional safeguards as well through cases such as Austin v. United States and Bennis v. Michigan. Pennsylvania, mentioned previously is an illustrative case that demonstrates what happens when the court neglects to define what is excessive when it comes to seizures. From 2005 through 2014, in Philadelphia alone, law enforcement has seized $34.2 million in cash, 1,900 vehicles, and 746 homes, of which law enforcement pocketed a profit of $47.73 million (Rulli, 2017, p. 1123-1124). Investigations into these forfeitures by the Civil Practice Clinic at the University of Pennsylvania Law School found that a high number of home forfeitures were often against law abiding older residents whose child or grandchild committed a non-violent drug offense (Rulli, 2017, p. 1133). Police would stake out the homes, witness the child or grandchild sell drugs with no sign of the property owner’s knowledge or involvement, and claim that since the seller lived in the home, the property was complicit. Again, due process was circumvented as the property owners were never actually charged with a crime. This research falls perfectly in line with a high-profile case in Philadelphia involving the Sourovelis family. Just like the patterns seen by the University of Pennsylvania, the Sourovelis’ family home was seized 13 after their adult son was arrested for possessing $40 worth of heroin and was accused of selling drugs out of the home (Brown, 2014). No charges were filed against the parents, yet their entire house was seized. For an entire house to be seized over $40 worth of drugs likely indicates an abuse of power and the violation of constitutional safeguards that needs to be investigated. This abuse of power is where the courts are supposed to step in and rule against unconstitutional laws in order to uphold the constitutional rights of citizens. The courts had two opportunities to do so, in Austin v. United States and Bennis v. Michigan, however they failed to establish a clear constitutional boundary regarding what law enforcement can seize. Their hesitation has allowed the practice to continue and even increase in use in the two decades following the decisions. As discussed above, Austin v. United States seemed to be a step in the right direction regarding due process and determining who the guilty party should be. Another key verdict reached in the decision was that civil forfeitures are to at least some degree punitive and thus can be restrained under the Excessive Fines Clause of the Eighth Amendment (Poe, 1994, p. 243). This ruling indicated a shift towards curbing abuse of civil forfeiture, or at least it would have, if the court has actually defined what could be considered excessive. The Court specifically did not create a test to determine what is “unconstitutionally excessive” and left it to lower federal and state courts to determine through the development of a multi-factor “excessiveness” test (Skorup, 2012, p. 437). This distinction became an issue in the case of Bennis. Austin saw the Court apply the Excessive Fines Clause, or the notion of proportionality, the idea that the punishment for a crime should be proportional to the 14 severity of the offense. Traditionally, proportionality was used in criminal sentencing and clarified further by the Court’s decision in Solem v. Helm. The Court decided in Solem that the principle of proportionality is deeply rooted in common-law, and since the language used by the Framers was from the English Bill of Rights, the Framers decided to adopt that principle. Thus, proportionality punishment must be applied to criminal sentencing (Poe, 1994, p. 246; Solem v. Helm, 1983). It is under this standard that the Austin Court ruled that while civil forfeitures are not criminal punishments, because they are punitive, they must fall under the proportionality guidelines. The Court noted as well that “the notion as we understand it, cuts across the division between the civil and the criminal law” (Poe, 1994, p. 247; Solem v. Helm, 1983). The verdict reached by the Court in this decision could have laid the foundation for major forfeiture reform, however the Court’s decision to not explicitly lay down guidelines for determining excessive civil forfeiture has allowed for continued misuse of the practice. Five years following the Austin decision, the Supreme Court established that guideline for the lower courts, or for at least in personam forfeitures. In the 1998 case United States v. Bajakajian, the Supreme Court identified several factors by which to determine whether a forfeiture is excessive under the Eighth Amendment (United States v. Bajakajian, 1998). These factors include the maximum penalty for the offense, the actual penalty imposed, whether the offense was a repeated or isolated incident, and the harm the offense created (Rulli, 2017, p. 1148). Now, while this test was specifically created to determine the excessiveness of a criminal forfeiture, prosecutors have attempted to apply these standards to both criminal and civil forfeitures even though they should only be used in criminal cases, arguing that what should be deemed “excessive” 15 should be determined by comparing the value of the property to the maximum statutory fine for an alleged underlying offense (Rulli, 2017, p. 1148). Again, activity in Philadelphia exemplifies why applying the Bajakajian test is problematic and violates the Eight Amendment. The University of Pennsylvania Law School studied a court case wherein a Philadelphia woman, named Ms. Young, had her home and car seized after her son was arrested for making four sales of marijuana. Much like other civil forfeiture cases, Ms. Young was not charged with any crime, yet her property was seized under the guise of facilitating criminal activity. On top of this, prosecutors used the excessiveness test established in Bajakajian to look at this case of civil forfeiture, despite the forfeiture not being in personam. The prosecutor argued that since her son could have potentially faced $80,000 in fines, and since the value of the seized home and car was less than that, it was not excessive, and the court agreed (Rulli, 2017, p. 1149). Therein lies the problem with applying this proportionality test to civil cases. As this case illustrates, a simple mathematical calculation is not a good measurement by which to determine the constitutional validity of a seizure. Simply because the value of good seized may be less than that of a potential conviction, it is not necessarily proportional. Eighth Amendment protections should not be determined by the market value of the property seized but rather be narrowly considered according to the case’s specifics (Rulli, 2017, p. 1151). Despite the low monetary value of Ms. Young’s home, its seizure is disproportionate to the accused offense, and thus a violation of Ms. Young’s Eighth Amendment protections. Problems arising from the Court’s decision not to establish an “excessiveness test” manifested themselves in the issues underlying Bennis v. Michigan. As mentioned in 16 the introduction, Bennis saw Bennis’s husband convicted of having sexual activity with a prostitute in their car, which was seized by law enforcement under the claim that it was used to facilitate the alleged illegal activity. The Supreme Court upheld this forfeiture in a 5-4 ruling relying both heavily on stare decisis, overturning the decision reached in Austin, by claiming this seizure was remedial rather than punitive. In Austin, the Court found civil forfeiture was at least partly punitive, however the majority in the Bennis Court seemed to disagree. The dissent’s opinions show what the court could have ruled to uphold constitutional protections, arguing that the seizure was not remedial as the majority argued because it did not stop the husband from using other methods for committing the illegal solicitation. They also argued that the decision was at odds with Austin as not only was the defendant innocent of the accused illegal activity, but her husband only committed one illegal incident in the seized property, thus showing that because the primary use of the vehicle was not illegal, it should not be seized under the instrumentality argument. For these reasons, the dissent argued that the forfeiture should have in fact fallen under the protection of the Excessive Fines Clause and thus been ruled unconstitutional (Bennis v. Michigan, 1996; Challener, 1996, p. 210). Bennis could have been an opportunity for the court to cement and clarify the protections put forth by Austin. Instead, they undermined the prior decision and failed to put forward any new restrictions on civil forfeiture. Austin proves that the Supreme Court is capable and willing to address civil forfeiture to some degree and acknowledge that is it sometimes used unfairly. While unfortunately the Court has been unwilling to readdress these problems since Austin, they have the potential to address it in the future. As civil forfeiture has come under intense 17 scrutiny in recent years, the Supreme Court will once again have the opportunity to establish clear rules and boundaries for the practice and uphold citizens’ constitutional rights. One such case currently before the Supreme Court is Timbs v. Indiana. While this case will be discussed further, it is worth noting that it has the potential for the Supreme Court to reassert the Austin ruling and recognize that the Eighth Amendment protections under the Excessive Fines Clause are vital to protecting against unreasonable seizures as well as ensuring that no forfeiture is disproportionate to accused wrongdoing. CONTEMPORARY CONTROVERSY In the past decade, civil forfeiture has become an increasingly heated topic. As cases such as the Sourovelis family continue to grab national headlines, public outcry against the practice is increasing pressure on both lawmakers and presidential administrations to enact reform. Congressional critics from both political parties have frequently criticized the practice including in a bipartisan May 2017 letter written by Republican Senators Lee, Paul, and Crapo and joined by Democratic Senators Udall, King, and Heinrich. These Senators in a strongly worded letter to then Attorney General Jeff Sessions, urged him to implement reforms of the federal civil forfeiture program and uphold and protect Americans’ constitutional rights (Lee et al., 2017). The letter was written as an attempt to urge Attorney General Sessions to rethink his proposed rollback of civil forfeiture reform implemented by former Attorney General Holder in 2015. In January of 2015, then Attorney General Eric Holder directed the Department of Justice to implement new civil forfeiture reforms. He did so following the release of a Washington Post investigation into civil forfeiture and the DOJ’s involvement especially 18 in regard to equitable sharing (Carpenter, et al., 2015, p. 29). The new policy was designed to prohibit federal law enforcement agencies from adopting property seized by local law enforcement for federal forfeitures. The intention was to try to curb the use of equitable sharing and the misuse that arises from this practice (Horwitz, O’Harrow, Rich, 2015). While certainly a small step in the right direction, the new policy was severely lacking in key areas thanks to several large exemptions. The policy exempted “property that directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography,” adoptions pursuant to a seizure warrant from a federal magistrate judge, and seizures that came from task forces or joint investigations (Horwitz et al., 2015). These exemptions pose a problem as between 2000-2013 only 3% of the value of forfeiture were from adoptions, whereas 73% of equitable sharing seizures came from joint task forces and investigations (Carpenter et al., 2015 p. 29). These reforms were too narrowly tailored and specific, and as a result left serious gaps that allow for continued exploitation of civil forfeiture. Even these small reforms came under attack in July 2017 when the Department of Justice under Attorney General Sessions announced a rollback of the Obama-era reforms put in place under Attorney General Holder. While the Justice Department announced that they will include safeguards alongside the rollback, including additional detailed requirements for law enforcement and an increase in required time to inform property owners, these safeguards do little to restrict civil forfeiture (Horwitz, 2017). The small step forward under Holder was completely eliminated under Sessions. Deputy Attorney General Rosenstein claimed that the goal of the rollback was to “empower our police and prosecutors with this important tool that can be used to combat crime, particularly drug 19 abuse” (Horwitz, 2017). The problem is that while Rosenstein is correct in that this decision will empower law enforcement, it ignores the problematic nature of civil forfeiture itself. Rather than respecting due process rights and acquiring a criminal conviction prior to seizure, under the current administration the Justice Department would rather uphold this constitutional questionable procedure. Sessions’s decision was lambasted by not only the writers of the May 2017 Senate letter, but by the entire U.S. House of Representatives. In a unanimous voice vote, the House voted in favor of amendments to the 2018 omnibus spending bill that would block any funding for the adoption program, a clear rebuttal to Sessions. Unfortunately, since the Senate refused to vote on the bill a compromise bill was drafted instead. This bill, HR 1625, passed both chambers and was signed into law, but not a single one of the amendments reforming civil forfeiture made it into the over 2,000-page bill (Sibilla, 2018a). Luckily others in Congress are still trying their best to reform their program. Republican Senator Rand Paul of Kentucky is one of those leading the charge, as he has continually since 2014 introduced the FAIR Act which would abolish the equitable sharing program (Carpenter, 2015, p. 30). Until bills like the FAIR Act are passed, it seems unlikely Congress actually means to reform the practice but rather only opposes the practice for political gain as civil asset forfeiture is viewed unfavorable by 84% of Americans according to polling (Ekins, 2016). Congress’s lack of action since 2000 to reform the civil forfeiture program likely indicates that while members of Congress find it political expedient to vocally oppose the program, when it comes down to actually passing meaningful legislation, they are much more hesitant. 20 In recent years, some states have taken steps at reform. New Mexico and the District of Columbia have implemented serious reforms to their civil forfeiture programs that have made them much more in line with constitutional principles. In 2015, New Mexico effectively abolished civil forfeiture, instead opting for the more constitutionally sound criminal forfeiture. New Mexico law enforcement is only able to seize property only after the government has convicted the owner of a crime, and then prove with clear and convincing evidence that said property was linked to the convicted crime. New Mexico has also shifted the burden of proof off of the property owner and back onto the government, respecting proper due process. In addition, New Mexico also requires 100 percent of forfeiture proceeds to go into the state’s general fund (Carpenter et al., 2015, p. 108). This thus removes law enforcement’s incentive to abuse forfeiture. Additionally, New Mexico has reduced the use of equitable sharing both by channeling any funds seized to the state general fund rather than to local agencies and by forbidding local law enforcement from transferring property less than $50,000 to the federal authorities (Carpenter et al., 2015, p. 109). The District of Columbia has taken similar action, raising the bar for forfeiture and forcing profits from forfeitures to go to the District’s general fund rather than to law enforcement (Carpenter et al., 2015, p. 62-62). It is possible other states will follow the lead of New Mexico and the District of Columbia and reform their current civil forfeiture programs. Congress should follow these states’ example as well. States implementing these reforms prove that not only that it is politically feasible to implement massive changes to policy, but that it is possible to strengthen citizens’ constitutional rights and keep law enforcement from abusing their authority. 21 When it comes to reforming or abolishing civil forfeiture programs, there is widespread support among legal scholars, politicians, and civil rights advocates, with few supporting keeping the current system. Among those that do, it is largely individuals who directly benefit from the current model. Law enforcement officials seem to be the single largest interest group who lobby for keeping the current system in place, likely due to the financial benefits they receive from the program. If this incentive is removed, there will be little support for the current civil forfeiture model. TIMBS V. INDIANA While legislative bodies debate civil forfeiture policy, the Supreme Court is facing an opportunity to implement limitations on the practice using judicial oversight. Currently before the Supreme Court is the case of Timbs v. Indiana. This case will determine whether Eighth Amendment protections should be applied to the states in cases of asset forfeiture. Timbs v. Indiana is a case being brought by the Institute of Justice, a criminal justice reform non-profit. They are arguing that states must uphold Eighth Amendment protections against excessive fines just like the federal government is required to. The Institute of Justice is joined by interest groups from across the political spectrum who are interested in the restoration of civil liberties and reigning in civil forfeiture. These groups include the Southern Poverty Law Center, the Cato Institute, the ACLU, and the National Association for Criminal Defense Lawyers (Sibilla, 2018b). The Institute of Justice is bringing the case on behalf of Tyson Timbs. Timbs was forced to forfeit his Land Rover worth $40,000 after he pled guilty to selling a small 22 amount of illegal drugs. Timbs had already agreed to serve one year of house arrest and pay $1,200 in court fees. Timbs’s Land Rover was legally bought with his late father’s life-insurance money (Sibilla, 2018b). Indiana’s lower courts found the seizure of his vehicle to be disproportionate to the offense and found it to be an excessive fine violating his Eighth Amendment rights, a decision which the court of appeals affirmed. They decided this because he already received a punishment for his convicted offense in the form of the fees and house arrest. The car was not tied to his crime but was forfeited in civil court. The lower courts said this was unconstitutional because the value of the vehicle at $40,000 was four times the maximum fee of $10,000 Timbs could have faced for his offense. (Sibilla, 2018b). The Indiana Supreme Court disagreed and reversed this ruling, claiming that the forfeiture was constitutionally valid as the U.S. Supreme Court has not explicitly ruled that the Excessive Fines Clause applies to the states under the Fourteenth Amendment (ACLU, 2018). In the case of Timbs, the Court should more closely follow the decision reached two decades ago in Austin. Just like in Austin, Timbs committed a drug offense, was punished through criminal proceedings for his offense, and faced that punishment. Yet the government in both cases proceeded to enact in rem civil forfeiture proceedings against their property. In Timbs, it was his vehicle and in Austin it was his mobile home and body shop. The Court needs to come to the same verdict here in this case. Civil forfeiture is punitive and because it is punitive it must be held to limitations under the Excessive Fines Clause of the Eighth Amendment. In Austin, the Court ruled that the Excessive Fines Clause should apply whenever there is punishment in both civil and criminal cases and they rejected the idea that the punishment was remedial as they 23 claimed the penalty had no correlation to the damages sustained (Skorup, 2012). The Court’s conclusion should be no different in Timbs’s case, as not only is the forfeiture of his vehicle a punishment for a crime in which he is already facing punishment under criminal proceedings, but it also is not a remedial because the forfeiture of his vehicle had no correlation to the crime he committed or the damages caused by it. The Court could reach a decision like in Austin and use this opportunity to curb civil forfeiture. However, as seen in Bennis, they could easily rule the other way and do little to curb forfeiture’s usage. In Bennis, the Court ruled that the forfeiture was remedial and not punitive. This was a direct contradiction to the ruling reached in Austin. The Court in Timbs’s case needs to see the forfeiture of his vehicle as a punitive punishment. The forfeiture of his vehicle in civil proceedings would not be remedial as it would not fix any damages he supposedly did, but simply punish him excessively. The dissent in Bennis noted that the forfeiture of Bennis’s car was excessive not only because she was innocent of wrongdoing but because the vehicle was not instrumentally used for illegal conduct. The Timbs Court should reach a similar conclusion, not because Timbs is innocent (he has already pled guilty to his crime), but because the vehicle was not instrumental to the illegal activity. In fact, the vehicle was never accused of being linked to his offense in any form, thus the Court should rule that it never should have even been tied to this case at all. The reasons reached by the majority in Bennis that allowed for the forfeiture of the vehicle must be rejected by the Timbs court. The verdicts reached in Austin should be the proper standard for forfeitures of this nature, and the Court needs to recognize and rule that the forfeiture of Timbs’s vehicle, which was both unrelated to his crime and worth four times as much as the maximum penalty for his offense, is not only a 24 violation of his Eighth Amendment rights against Excessive Fines but also a disproportionate punishment for his crime. IMPLICATIONS AND REFORMS There are clear steps that can be taken in order to seriously reform civil forfeiture and put it in line with constitutional standards. The best reform would be to simply abolish civil asset forfeiture, however given its ingrained presence in law enforcement tactics this may not be politically feasible. In lieu of that, there are several key steps that should be taken. First, due process must be restored by requiring proper criminal convictions before forfeitures can be completed. Second, there must be clearly defined limitations on the value of property that can be seized relative to the crime. Third, equitable sharing must be abolished to avoid a conflict of interest for law enforcement. Fourth, the process must become more transparent, involving record keeping requirements for law enforcement. First, due process protections must be upheld in civil forfeiture procedures. This can be done in several fundamental steps. No property should be seized without a criminal conviction. The government must then prove beyond reasonable doubt that said property was tied to the crime. The US legal system uses this standard to determine an accused person’s guilt, and their property should be protected under the same standard. All states and the federal government should put in place laws that require this strict burden of proof as well as a criminal conviction before seizing property. Exceptions should only be made in the case of property that itself is illegal, such as drugs, large amounts of firearms, and other contraband. They must also reform who shares the burden 25 of proving guilt. It must be the government’s responsibility to prove property was linked to an illegal activity prior to seizure, and that burden must not be placed on the property owner. “Innocent until proven guilty” needs to apply to both citizens and property. Due process reforms must also be implemented in order to protect those of lower economic classes. Since civil forfeiture takes place in civil courts rather than criminal, no court appointed lawyer is mandated for indigent defenders. This is a violation of their due process rights because even though such forfeiture takes place in a civil court, they can lose their property rights without any legal counsel if they cannot afford it. If civil forfeiture is to continue, protections should be implemented to protect not only indigent defenders but all those whose property is seized through civil forfeiture. As the government is the one prosecuting the property, just like in criminal cases, they should be required to provide legal counsel for all those who cannot afford it. States could possibly fund this legal counsel by designating state funds similar to already existing indigent defense funds in order to provide funding for the defendant property owners in civil forfeiture cases, perhaps even using money sent to the state general fund from the revenue produced from these exact same forfeitures. If states want to refrain from funding these expenditures, they should consider abolishing civil forfeiture and solely use criminal forfeiture instead, thereby allowing indigent defenders to use the current indigent defense framework already established. While this may be a politically difficult task to accomplish, it could serve as a strong deterrent to abuse of the program. Once the government is responsible for the bill whether they win or lose, governmental agencies will likely be more hesitant when attempting forfeiture. 26 Second, in addition to due process protections, the government must put in place restrictions to prevent both unreasonable seizures and excessive fines that may arise through the use of civil forfeiture. While hopefully the Court will help establish those boundaries in their decision in Timbs v. Indiana, it may be left to the lower courts to help ensure those protections are in place. The courts need to establish an “excessiveness” test that not only applies to federal forfeitures but also state forfeitures. This test will help prevent the disproportionate punishments enacted upon innocent property owners. The courts also need to prohibit prosecutors from applying the test established in Bajakajian to civil forfeiture cases as this test was never meant for them, only for criminal forfeiture. Applying this test to both is leading to grossly disproportionate punishments. As seen in various cases in Pennsylvania, as when law enforcement seized entire family homes for minor non-violent drug offenses, the fact that such greatly disproportionate punishments are allowed is seriously concerning. The courts need to clarify a balanced proportionality test and use it to uphold Eighth Amendment protections. Third, alongside these reforms, the equitable sharing program should be abolished. This program not only allows law enforcement to circumvent legal restrictions implemented by states, but it also incentivizes police to abuse their legal authority. Since most profits from equitable sharing are returned to local law enforcement, it encourages misuse of civil forfeiture. This system of “policing for profit” creates a conflict of interest between law enforcement and the public they serve by providing a financial incentive for law enforcement to abuse the program. Since few states currently have laws directing where the funds from this program will be spent, law enforcement is encouraged to misuse forfeiture laws for their own gain. Two main reforms need to happen in this area. 27 First, Congress should pass legislation similar to the FAIR Act to abolish the equitable sharing program. This would remove the biggest incentive for policing for profit. Secondly, states should implement policy wherein profits from asset forfeiture goes into the state general fund, similar to recent laws enacted by D.C. and New Mexico. Under this system, police would not be tempted to abuse civil in order to fill their own coffers. Finally, a final key component necessary for reform is the establishment of a public recording system to hold law enforcement accountable. Currently, only 14 states, D.C., and the federal government have any kind of records regarding forfeiture activity (Carpenter et al., 2015, p. 31). It is difficult for both the public and law makers to hold law enforcement officials accountable for forfeitures when there is little to no record of their actions. There needs to be more transparency when it comes to data about forfeitures and this can be achieved with a record keeping system that is easily accessible. Establishment of these records will allow researchers, private citizens, policymakers, and governmental agencies to analyze police activity and ensure proper oversight. When it comes to programs that can be easily abused, it is vital that there is as much transparency and accountability as possible. These four reforms will not only put civil forfeiture much more in line with constitutional standards but help ensure higher ethical standards for law enforcement. These reforms should be implemented as soon as possible to end misuse of civil forfeiture and restore rightful constitutional protections. 28 CONCLUSION Civil forfeiture is a complicated and messy policy that has incentives for misuse and harms innocent property owners. Due to the hesitation of the Courts to define and apply constitutional protections in civil forfeiture cases and Congress’s inability to pass meaningful legislative reforms, civil forfeiture is being used with few restrictions on a wide scale. While some states have started to step up and either ban the practice or heavily restrict it, the federal government and the remaining states must seek reforms. Reform is both vital and pressing, as the value of assets seized continues to grow annually, and more people continue to have their constitutional rights violated and ignored. The courts have failed to secure constitutional protections from civil forfeiture violations and as a result due process is being violated when property is seized without criminal convictions in the majority of states and at the federal level. What is being seized is often excessive and disproportionate to the crimes for which the property owner is being accused. Equitable sharing programs have led to a system of policing for profit, in which police are incentivized to violate constitutional protections of the very citizens they protect in order to reap financial benefits for their departments. As it is currently practiced, civil forfeiture is in a multitude of ways unconstitutional. It violates constitutional amendments including the Fourth, Fifth, Eighth, and in some ways the Fourteenth. 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