The Corner

Law & the Courts

Good News: A Unanimous Supreme Court Strikes a Blow for Civil Liberties

Supreme Court justices pose for their group portrait at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/REUTERS)

It’s always a good day when even Justice Ruth Bader Ginsburg writes like an originalist — and that’s exactly what she did when she wrote the opinion for seven justices in Timbs v. Indiana (justices Gorsuch and Thomas filed separate concurring opinions). At issue was the important question of whether the Eighth Amendment’s excessive fines clause applied to the states and whether the excessive fines clause applied to a practice called in rem civil-asset forfeiture. Under this practice, law-enforcement officials often engage in two separate punitive legal processes against criminal defendants. The first is the criminal prosecution itself, which can impose prison sentences and fines according to statutorily defined punishments. The second is often a civil action against the criminal defendant’s property. Yes, the government will file suit against trucks, cars, jewelry, boats, and cash — leading to absurd case captions like, say, Texas v. One Gold Crucifix — claiming that the property was used for criminal purposes and then seize that property under a lower, civil, burden of proof.

As a result, a defendant can often lose their property without ever being convicted of a crime. Even if convicted of a crime, they can face asset forfeiture that far, far exceeds the amount of any criminal financial penalty under applicable. Then, often, law enforcement turns around and sells the property or pockets the cash — using it to pad state and local law-enforcement budgets. The practice is so common that in 2014, for example, the state took more money from citizens than burglars took from crime victims.

Thanks to the Supreme Court, civil-asset forfeiture now faces a new and substantial constitutional obstacle. I particularly liked how Justice Ginsburg traced objections to the excessive fines all the way back to the Magna Carta:

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.”

There’s some real wisdom in Anglo-American legal history. Over at Reason, Ilya Somin has a nice analysis of the case, and he adds an important caveat:

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as an “excessive” in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal. But, hopefully, that will not prove to be the case.

I also agree with Ilya regarding the application of the excessive-fines clause to the actual facts of the Timbs case itself. Indiana seized a $42,000 Land Rover when the maximum criminal fine for the offense was $10,000. In other words, through civil-asset forfeiture, the state could impose four times the monetary penalty while adjudicating the case under a lower burden of proof.

It is entirely just to impose proportionate criminal penalties for criminal acts. It is fundamentally unjust to supplement those criminal penalties with exorbitant additional civil forfeitures. That injustice is magnified when police departments have direct financial incentives to collect as much property as they can. Today, the Supreme Court began the process of rolling back a serious constitutional abuse. Good for the Court, and congratulations to the excellent attorneys at the Institute for Justice who litigated the case.

Something to Consider

If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (conference calls, social-media groups, etc.). And importantly, NRPLUS members help keep NR going. Consider it?

If you enjoyed this article, and were stimulated by its contents, we have a proposition for you: Join NRPLUS.

LEARN MORE
David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

Most Popular

Politics & Policy

The Sinking Collusion Ship

The entire Trump-Russia collusion narrative was always implausible. One, the Washington swamp of fixers such as Paul Manafort and John and Tony Podesta was mostly bipartisan and predated Trump. Two, the Trump administration’s Russia policies were far tougher on Vladimir Putin than were those of Barack ... Read More
Politics & Policy

The Problem with Certainty

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Including those of you having this read to you while you white-knuckle the steering wheel trying to get to wherever you’re going for the ... Read More
Politics & Policy

The Worst Cover-Up of All Time

President Donald Trump may be guilty of many things, but a cover-up in the Mueller probe isn’t one of them. House Speaker Nancy Pelosi, attempting to appease forces in the Democratic party eager for impeachment, is accusing him of one, with all the familiar Watergate connotations. The charge is strange, ... Read More
World

Theresa May: A Political Obituary

On Friday, Theresa May, perhaps the worst Conservative prime minister in recent history, announced her resignation outside of number 10 Downing Street. She will step down effective June 7. “I have done my best,” she insisted. “I have done everything I can. . . . I believe it was right to persevere even ... Read More
PC Culture

TV Before PC

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ... Read More
Politics & Policy

The Democrats’ Other Class War

There is a class war going on inside the Democratic party. Consider these two cris de couer: Writing in the New York Times under the headline “America’s Cities Are Unlivable — Blame Wealthy Liberals,” Farhad Manjoo argues that rich progressives have, through their political domination of cities such as ... Read More
Culture

The Deepfake of Nancy Pelosi

You’ve almost made it to a three-day weekend! Making the click-through worthwhile: A quick note about how National Review needs your help, concerns about “deepfakes” of Nancy Pelosi, one of the most cringe-inducing radio interviews of all time, some news about where to find me and the book in the near ... Read More
U.S.

America’s Best Defense Against Socialism

The United States of America has flummoxed socialists since the nineteenth century. Marx himself couldn’t quite understand why the most advanced economy in the world stubbornly refused to transition to socialism. Marxist theory predicts the immiseration of the proletariat and subsequent revolution from below. ... Read More