On Wednesday, folk hero and Associate Supreme Court Justice Ruth Bader Ginsburg struck what even conservative media hailed as a major blow against civil asset forfeiture, the practice of seizing property without a criminal conviction and one of the worst abuses of the drug war and a concern for marijuana users everywhere the plant remains illegal.
That sounds nice and good — and it mostly is. But within hours, prosecutors in several states where asset forfeiture is widely abused pledged that, for now, business would continue as usual. In other words: the drug war is still on and cannabis users must still fear losing their vehicles, property, and possibly even their homes for a nonviolent drug offense.
In a unanimous decision in a case brought by a man whose $42,000 luxury SUV was seized by police after he sold $400 worth of heroin to local police, SCOTUS ruled that constitutional limits on excessive fines do in fact apply to state and local governments.
A lower court had ruled that the seizure of Tyson Timbs’s car, a typical procedure for most law-enforcement agencies, who get to absorb proceeds from whatever was seized directly into their agency budgets, was “grossly disproportionate.”
The state Supreme Court disagreed, prompting the appeal to SCOTUS. And as NPR reported, on her second day back on the bench, Ginsburg wrote the opinion overruling the Indiana State Supreme Court decision, declaring that protections against such outrageous punishments extend back to the first days of the Republic.
“Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties,” she wrote, adding that police departments routinely use conviction-less asset forfeitures as a source of revenue — a practice advocates have dubbed “policing for profit” — and that such fines could also be used to “retaliate against political enemies.”
Along with sentencing guidelines and prison population reduction, momentum has been building for civil asset forfeiture reform in recent years, momentum that has slowed significantly in the law-and-order Trump Administration. Former Attorney General Jeff Sessions was a loud and proud advocate for extracting the stiffest punishment possible out of the smallest drug-related crime, and in a meeting with law-enforcement officers early in his term, President Donald Trump pledged to protect the practice and to “end the careers” of politicians seeking to limit police powers.
Asset forfeiture even figures in Trump’s increasingly quixotic hunt for $5.7 billion to build his border wall with Mexico. Civil forfeiture funds could pay for as much as 8 percent of the wall’s cost, according to a recent estimate.
Asset forfeiture has loomed over the marijuana movement since the beginning, and has been a weapon in the government arsenal deployed against even the legal marijuana industry. It was fear of losing their buildings to government seizures that was the stick used by the U.S. Justice Department during the 2011-2013 crackdown on legal marijuana dispensaries like Harborside Health Center. The notion of forfeitures also resurfaced more recently as former Attorney General Jeff Sessions intimated that his federal government would not look kindly on growing legal marijuana industries in Colorado, Oregon, Washington, and elsewhere.
But no sooner was the ink dry on RBG’s opinion this week when prosecutors announced they would continue doing as they have always done — including in states that are some of the worst abusers of civil forfeiture laws, according to advocacy groups.
In Alabama, the state District Attorneys’ Association put out a release on Wednesday declaring that state law already requires “criminal sanctions… to be proportional to the underlying criminal activity,” as AL.com reported.
“I’d also point out that this case does not infer in any way that civil forfeiture is not a valid legal proceeding by the State,” said Barry Matson, the group’s executive director. “Certainly, it was within the Supreme Court’s wheelhouse to have done so, and it did not.”
Alabama has some of the worst civil forfeiture laws in the nation, according to the Institute for Justice. No conviction is required to seize a private citizens’ property, there are limited protections for third parties caught up in a law-enforcement proceeding, and 100 percent of all assets seized go to the law enforcement agency involved — thus creating both an incentive and an atmosphere to encourage the practice. Further, Alabama law does not require law-enforcement agencies to track or report forfeitures or spending from forfeiture funds, meaning there is little transparency or public accountability.
So while the SCOTUS ruling may be encouraging for RBG fans and for skeptics of the Roberts-Kavanaugh court, asset forfeiture remains alive and well in America — as does the drug war.
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