Indiana Supreme Court Lays Down a Marker in Asset Forfeiture Reform

In February, I told you about a Supreme Court case where the state of Indiana moved for the civil asset forfeiture of a drug dealer’s $42,000 Land Rover SUV.  The drug dealer bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The $42,000 purchase price was roughly four times the maximum allowable fine for the offense.  The Supreme Court found the forfeiture disproportionate to the crime and sent the case back to the Indiana Supreme Court to reconsider the matter in light of the 8th Amendment’s prohibition against excessive fines.  The Supreme Court applied the Excessive Fines Clause to the states for the very first time in this case through the Due Process clause of the 14th Amendment.
 
At the end of October, the Indiana Supreme Court rejected the prosecution’s argument that any property used in a crime is subject to seizure.  Instead, the court ruled a number of factors must be taken into account in deciding whether a forfeiture is ‘excessive’ within the meaning of the 8th Amendment.  The factors include the owner’s guilt and the extent of the misconduct, but also the owner’s financial circumstances.   The court wrote it would be fictitious to believe that “taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.”  The case now goes back to the trial court for a final determination, after applying the new standard to the facts at hand.  The trial court had originally ruled in the drug dealer’s favor in 2015 and ordered the SUV returned to him. 
 
This case is not the end of the civil asset forfeiture issue.  Several legislative reforms have been proposed to curb civil asset forfeiture abuse.  These reforms include:

• Sending forfeiture money to the general fund to remove the incentive for law enforcement to enrich itself through excessive forfeiture
• Restoring the presumption of innocence by requiring the government to prove the owner knew about the illegal use of the property (this is in effect in 16 states and the District of Columbia),
• Not allowing local law enforcement to work with the feds to bypass state restrictions and seize the property (now prohibited in 8 jurisdictions), and
• Even abolishing civil asset forfeiture altogether as in New Mexico, North Carolina, and Nebraska.  In those states, property can be taken only after the owner is convicted of a crime.
  
  

Bills in Congress would, among other things:

• Raise the burden of proof in civil forfeiture proceedings from a ‘preponderance’ of the evidence to ‘clear and convincing’ evidence
• Guarantee legal representation in forfeiture proceedings, and
• Abolish the federal program that lets local law enforcement evade state forfeiture restrictions.
  
  

With more actions expected in the courts, state legislatures, and Congress, the final contours of civil asset forfeiture law and, thus, the practical meaning of the 8th Amendment’s Excessive Fines Clause will not be known for some time.