Last fall, CR-CL highlighted the problematic history and application of the lesser known, but more-often used, counterpart to criminal forfeiture: civil asset forfeiture. As a mechanism that generally allows police to seize any personal property they suspect to have been used in the commission of a crime, civil asset forfeiture, critics have argued, operates on an impermissibly low standard of proof that leads to disparate impacts based on the discretion of local law enforcement. More pointedly, many have highlighted how civil asset forfeiture disproportionally targets and impacts the poor and people of color, as borne out in the data in cities across America.

A mapping of the location of police seizures in Chicago, for example, shows that its South Side and West Side neighborhoods–overwhelmingly African-American and low-income neighborhoods–are more often targets of asset forfeiture than other city neighborhoods. Looking at the Cook County data overall, a larger study showed the average estimated seizure value was $4,553 with a median value of only $1,049 and with cash, as opposed to property, accounting for three-quarters of total seizures.

The problems with civil asset forfeiture have recently come into sharp relief with the criminal case of Tyson Timbs, which will reopen the question of the constitutionality of civil forfeiture laws after almost twenty years.

In January 2013, Mr. Timbs used life-insurance proceeds from his father’s death to buy a Land Rover for $42,058. Over the subsequent four months, he used this car to drive between Marion and Richmond, Indiana in order to purchase and transport heroin. Ultimately, with the help of an informant, an undercover detective carried out two controlled buys of two grams of heroin each from Mr. Timbs for $225 and $160 respectively. Despite only charging Mr. Timbs nominal court fees involved with the acceptance of his guilty plea on two felony counts, the State sought forfeiture of the Land Rover. The trial court denied the forfeiture, concluding it was excessive under the Eighth Amendment prohibition on excessive fines. The statutory fine for the felony dealing count was only $10,000 when Mr. Timbs was arrested, but the car’s value was over four times that amount. While the state intermediary appellate court affirmed, the Indiana Supreme Court agreed to hear the case upon the prosecution’s appeal.

According to the Indiana Supreme Court, the U.S. Supreme Court has yet to actually enforce the Excessive Fines Clause of the Eighth Amendment against the States. Although Furman v. Georgia applied the Eighth Amendment’s prohibition against “cruel and unusual” punishment at the state level in 1972, the same treatment was not extended to the Excessive Fines Clause. In fact, the next real fight for “incorporation” of this clause against the states at the Supreme Court level came with Browning-Ferris Indus. v. Kelco Disposal in 1989, in which the Court briefly considered but ultimately declined to extend the Eighth Amendment to allegedly excessive punitive damages in a civil case. It was not until twelve years later that the Court, in Copper Indus. v. Leatherman Tool Group, Inc., declared that the Fourteenth Amendment Due Process Clause provided an appropriate vehicle to make both the Excessive Fines and Cruel and Unusual Punishments Clauses applicable to the states.

However, the Indiana Supreme Court disregarded the federal Supreme Court’s finding as pure dictum. It also pointed to McDonald v. City of Chicago, which, in deciding whether the individual right to bear arms applied to the states, held that a number of Amendments on the Bill of Rights remained “unincorporated” including “the Eighth Amendment’s prohibition on excessive fines.” While this statement was similarly deemed to be dicta, the Indiana court, in light of these mixed messages, declined to extend the Excessive Fines Clause to Indiana—taking what it deemed the “cautious” approach.

Nevertheless, even in the face of such losses at the state level, opponents of civil forfeiture laws took encouragement from Justice Thomas’ words in response to an appeal from Leonard v. Texas, a case in which the mother of the defendant sought to overturn the seizure of over $200,000 in cash found in a safe in her son’s car, alleged by the government to be the product of narcotics’ trafficking. Though he joined in the Court’s denial of cert. Justice Thomas expressed grave doubts about the practice which “frequently target[s] the poor and other groups least able to defend their interest,” who are also the most susceptible to seizure given their tendency to use cash over credit.

Justice Thomas’ words were a clear invitation for further cert. petitions on this issue, and on June 18, 2018, he seemingly made good on these words as the Supreme Court granted Mr. Timbs’ petition for writ of certiorari on appeal on the question of “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.” Though major efforts to reform or outright ban civil forfeiture laws at the state level are long underway, Congress buried several amendments just last spring that had enjoyed unanimous support in the House in opposing Jeff Attorney General Jeff Sessions’ expansion of civil forfeiture. With these other routes of reform stymied, the Supreme Court’s willingness to take this case up is being heralded by some as a rare chance to end the practice in one fell swoop. The Court has seen an outpouring of briefs written in opposition to civil forfeiture from a number of organizations, including the American Bar Association. In particular, the NAACP has written an amicus brief that powerfully explains how state civil forfeiture laws are an extension of the exact kind of the discriminatory abuses that the framers of the Fourteenth Amendment hoped to stamp out in 1868. Such a chorus of reasoned voices is enough to hope even a conservative Court finally says: enough is enough.