Tea Partiers have long been concerned about civil asset forfeiture, the practice of police departments seizing assets from, say, drug dealers, and selling them off. Nobody likes drug dealers, so what could go wrong?
Enough for a unanimous Supreme Court to rule this last week there are constitutional limits to civil asset forfeiture. A drug dealer in Indiana pled guilty, then the state moved for forfeiture of the man’s $42,000 Land Rover SUV the police had seized earlier. The man bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The trial court observed $42,000 was four times the maximum allowable fine for the offense and denied the state’s request. The Indiana Supreme Court reversed, sending the case to the U.S. Supreme Court.
Justice Ruth Bader Ginsburg wrote the Court’s opinion. The issue was whether the prohibition against excessive fines in the Eighth Amendment of the U.S. Constitution applies to the states through what is called the incorporation doctrine. Most, but not all, federal rights have been incorporated and bar the states, not just the federal government, from infringing on those rights.
Justice Ginsburg wrote rights are not to be incorporated unless they are “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Ginsburg found the principle of proportionality - that economic sanctions should be proportional to the offense - went all the way back to the Magna Carta. Proportionality also appeared many times after that, in the English Bill of Rights, laws of the American colonies, and three dozen state constitutions. She also noted excessive fines were used to keep slaves who had been freed from bondage in a state of perpetual involuntary labor. All of this was more than enough, in the Court’s view, to apply the Eighth Amendment’s prohibition against excessive fines to the states through the Due Process clause of the 14th Amendment.
Justice Thomas and Justice Gorsuch concurred in the result, but wrote separately to suggest that the proper route to the result is through the Privileges & Immunities clause, not the Due Process clause. There is quite a debate going on in conservative legal circles about the meaning of the Privileges & Immunities clause, but that’s a subject for another day.
For now, the Court’s decision curbs the abuses of civil asset forfeiture and reins in what critics have called ‘policing for profit’. Some cities were getting as much as 30 percent of their budget from the practice. Talk about gangster government, wow! Justice has been served because the financial conflict of interest has, to a large extent, been removed. Justice Ginsburg noted another abuse in her opinion - large fines can be used to chill free speech or retaliate against political enemies. The potential for that abuse in the states is much less after the Court’s decision.
However, I should note that fans of state sovereignty will not like the reasoning in this case. To the extent state sovereignty ever really existed, the incorporation doctrine is another nail in its coffin. Civil asset forfeiture, like so many other areas of the law, has now been federalized - Washington has spoken. Before this case, states were free to impose excessive fines, but not anymore. Under our system, the federal government is supposed to have limited powers and the states are supposed to have powers of their own. Tea Partiers like federalism for this reason, but our challenge is to find constructive ways to revitalize state power as a check on a central government that has been growing increasingly more powerful and less accountable over time. The result in the asset forfeiture case last week may have been correct, but the case didn’t make the task of revitalizing federalism any easier for us.