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Will The Supreme Court Get Serious About the Abuse of Civil Forfeiture?

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This week’s Timbs decision is reason for cautious optimism. But one note of caution: the excessive fines clause has applied to civil forfeiture at the federal level since 1993, and the effect has been…not much:

This decision could be a very big deal: Civil forfeiture is a process rife with abuse and, not surprisingly, studies have found that the practice disproportionately targets people of color. And, because the police generally keep the proceeds of forfeitures, they have a perverse incentive to seize property with little regard for the right of individuals.

Plus, as Sarah Stillman of the New Yorker observed, “you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with ‘probable cause’ is sufficient. Nor must you be charged with a crime, or even be accused of one.” Merely being related to a suspected low-level drug dealer can result in you losing your home, car and/or life savings in some jurisdictions.

This kind of arbitrary abuse by unelected state officials is exactly the kind of evil the courts should be checking, and the Timbs decision provides a basis for challenging many of these egregious abuses.

However, this is a narrow opinion, and how much it will matter will depend on how the court applies it in the future. After all, the Eighth Amendment has applied to federal civil forfeitures for more than two decades and yet, during that period, “the federal government took in $36.5 billion in assets police seized from people on America’s roads and in its poorer neighborhoods, many of whom never were charged with a crime or shown to have drugs.” And that’s just the federal government.

This case could be the basis of the Court taking serious action to curb the arbitrary use of civil forfeiture, but only if the Court adds real teeth to the excessive fines clause. Otherwise, this could be the kind of precedent in the Yick Wo tradition that is observed almost entirely in the breach.

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