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Supreme Court may rule some forfeitures are 'excessive fines'

The use of civil forfeitures has been called "policing for profit." The civil forfeiture process usually begins when someone is charged with a crime, either at the state or federal level. At that point, police and prosecutors may find that some of the defendant's money or property is connected to criminal activity. In essence, the prosecutor charges these valuables with being connected to or the proceeds of crime. The defendant bears the burden of proving that they were not. If the defendant fails to prove that, the police and prosecutor's office get to seize the money and property permanently -- even if the defendant has not yet been convicted of any crime.

It happened to an Indiana man. He was convicted of selling a small amount of heroin in an effort to support his own opioid addiction. A civil forfeiture claim was levied against his Land Rover, which was valued at $42,000, because he had briefly transported drugs in the vehicle. The SUV was worth more than four times the maximum fine for the crime he committed.

The trial court ruled that this amount of the seizure was so disproportionate to the underlying crime that it was barred by the Eighth Amendment's prohibition on "excessive fines." There's only one problem with that argument: The Eighth Amendment has never been applied to the states.

The Bill of Rights (the first 10 amendments to the U.S. Constitution) was originally intended to apply only to actions by the federal government. Over time, however, and especially after the Fourteenth Amendment was passed, the U.S. Supreme Court ruled that most of the Bill of Rights applies to actions by states, as well. However, the high court has never specifically applied the excessive fines clause to state action.

Is the civil forfeiture of a crime-connected asset considered a fine? Yes, in the 1993 case of Austin v. U.S., the Supreme Court ruled that asset forfeitures do count as fines for the purpose of the excessive fines clause.

Does the Eighth Amendment apply to states? At oral argument, several justices seemed to lean sharply in that direction.

For example, Justice Neil Gorsuch said to Indiana's attorney, "We all agree that the excessive fines clause is incorporated against the states. ... Can we at least agree on that?" The attorney began to argue that the issue was complicated, but Gorsuch cut him off.

Quoting the opinion in Austin v. U.S., Justice Sonia Sotomayor said, "For the Eighth Amendment to limit cash fines while permitting limitless [property confiscation] would make little sense."

Will the Supreme Court end the practice of massive civil forfeitures? A ruling in the case is expected in several months.

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