On February 19th, the Supreme Court ruled in an asset forfeiture case that the seizure of a $42,000 Range Rover from an Indiana man for selling heroin to undercover cops for $225 was unconstitutional under the Eighth Amendment’s excessive fines clause. The ruling noted that the fine for the offense to which the man pleaded guilty was a maximum of $10,000, only a fourth of what the Range Rover was worth.
The Institute for Justice was the main challenger to the Range Rover seizure.
The ruling of the court was unanimous. Justice Ruth Bader Ginsburg, on her first day back on the court, wrote the decision. She wrote:
“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties.”
Referring to an earlier decision, Justice Ginsburg wrote:
“….. fines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue’ …..”
In response to the court’s ruling, the Harris County Republican Party executive committee has proposed a resolution “Honoring and expressing appreciation to The Institute for Justice, the entire Supreme Court of the United States, and notably Justice Ruth Bader Ginsburg who wrote the majority opinion.”
Asset forfeitures are being used to seize the assets gained through the illegal sales of drugs. Here is a good example.
The last drug raid I went on was on a meth lab deep in San Bernardino County’s high desert. That lab and one in Los Angeles County was operated by a 17-year- old Mexican-American youth already on probation for the sales of drugs. After we concluded our business there, we went back to Riverside County and raided his house in the city of Corona.
His House was a big two-story house in an upscale neighborhood, complete with a large swimming pool, a big playhouse containing a pool table and several commercial pinball machines, and a large kennel which held several Chow Chows and Rottweilers.
The house contained the finest furniture and kitchen appliances, a very valuable grandfather clock, and a large collection of crystal figurines. It also housed a big parrot. There were several AR-15s and pistols in the house. And the youthful drug dealer – yes, he was only 17 – had two Corvettes, one of which was custom-made for him, and a top-of-the-class pickup truck.
The youth had no visible means of employment. He did not inherit any money. So, it was obvious that all of his assets were obtained through the manufacture and distribution of meth. Thus, the real property, the two Corvettes and the pickup truck, the guns, the dogs, and everything in the main house, including the parrot, and everything in the play house was seized.
When his probation officer was contacted and asked if he ever considered how his client accumulated such wealth when he had no visible means of employment, he replied, “Hmm, that did seem somewhat strange.”
I do not agree with this particular court decision. The Indiana man was selling heroin out of his Range Rover and since the $42,000 vehicle was an instrument used for the sale of illegal drugs, the cops should have been able to seize it, the maximum fine of $10,000 notwithstanding.
But I do strongly agree that asset forfeitures should never be used as a revenue producer for a city or county. It has been reported that several cities have used the asset forfeiture laws to seize the cars of drivers exceeding the speed limit by only 5mph. That is simply unforgivable!
I firmly believe the government should never be permitted to seize any assets earned by hard-working, law abiding citizens. However, the seizure of property gained through the sales of illegal drugs should be fair game for forfeiture. So, should the police be able to seize the assets of drug dealers? My answer is a resounding yes, yes, yes!
Those who oppose any and all asset forfeitures by the government should not celebrate the court’s ruling because seizures like the one in Corona, if challenged, would probably stand up in the courts. It’s the unreasonable seizures made to raise revenue that Justice Ginsburg and the other justices had in mind. It will be up to the lower courts to decide which seizures violate the 8th Amendment and which ones don’t.
David Jennings says
No Howie, they should not be allowed to seize any assets. There are too many opportunities for abuse. Power corrupts.
Has the accused been paying property, income, and all other taxes and fees normally charged to law abiding citizens?
Nobody, including illegal substance dealers, is entitled to special treatment or “favors”. Gains obtained via means contrary to law should never be considered legal property.
They should be confiscated by government authority and disposed of in ways that help offset the costs usually charged to citizens via taxes, bonds, etc. In short, all assets gained via illegal means should be seized by law enforcement officials.
To follow up on David’s comment, my firm once represented a guy who had about $75,000 in cash seized by some small town police department. The department wanted to guess what, forfeit the money to itself.
Our client was from the Middle East and he was in the business of buying behemoth American used cars at auction to ship to the Middle East. He traveled all over the country and had to pay cash for the cars he bought at auction. He wasn’t a drug dealer. He was a lower sort of life, a used car dealer.
The police in that small town had no reason to believe that our client was engaged in illegal activity. He was a convenient target.
The long and short of it was we got all of the money back about a year later. And, the guy had to spend a considerable portion of the $75,000 on our fees. But how many times did that police department forfeit $1,500 or $2,000, a sum not big enough to fight over. How many people were deprived of their property? Probably a lot. It’s a quick, easy way for a police department or city to get an influx of cash.’
We’ve represented innocent little old ladies whose cars were forfeited because their no-good grandsons used the car to transport drugs.
Then, there were the clients we had who had $150,000 seized during a dope deal sting in a county north of Houston Our clients were headed to Huntsville until we pointed out to the elected DA that his sheriff’s department booked only $75,000 into the property room. The first thing he said was, “How would your clients like some probation.” They liked it a lot.
And, you can bet that police department and dozens like it don’t target older white men driving a the new Lexus for the stops and the seizures of property. It’s going to be minorities.
Of course, the police agencies use that seized money for law enforcement purposes, right. Like the county north of Houston where the sheriff’s department once bought a margarita machine and the DA’s office used forfeited money for the office Christmas party.
The Supreme Court case doesn’t apply to fruits of illegal activity like drug dealing. If the authorities can trace property owned by a defendant to profits of illegal activity, they can seize it to their heart’s content. So, Howie’s 17-year-old drug dealer could lose his house to a forfeiture if the government can prove it was bought with drug money. But, there is no question that the Land Rover seized in the Supreme Court’s decision was bought with clean money. What the Supreme Court held was that seizing a $42,000 car because the driver had some heroin he was transporting in the car was unconstitutionally excessive.
And, Clarence Thomas agreed with Ruth Bader Ginsburg. Brent Kavanaugh agreed with Sonia Sotomayor.
Howie Katz says
“So, Howie’s 17-year-old drug dealer could lose his house to a forfeiture if the government can prove it was bought with drug money.”
Tom, how else could this youth have accumulated such wealth without a job or an inheritance if it wasn’t with money gained from the manufacture and distribution of meth?
Fat Albert says
Maybe he won the lottery. Maybe he mowed a whole crapload of lawns. Maybe he wrote a really cool ap for I-phones and made a killing. We can speculate all we want. If you want his stuff, you should have to prove that it came from drug money.
BEATS HELL OUT OF ME. MAYBE HE INHERITED THE MONEY TO BUY IT. mAYBE HE WON A LAWSUIT. iT IS THE GOVERNMENT’S JOB TO SHOW IT WAS THE PRODUCT OF ILLEGAL ACTIITY, NOT THE OWNER’S JOB TO SHOW IT WAS LEGALLY OBTAINED.
Bob Walsh says
I have absolutely no problem with civil asset forfeiture, AS LONG AS IT IS ACCOMPANIED BY DUE PROCESS. It is way too easy for a semi-corrupt or outright corrupt agency to use this as a cash cow with virtually nobody interested in keeping an eye on them and saying NO when appropriate.
Fat Albert says
There’s this thing call a Constitution that we have. And, it has some additions we call Amendments. And the 5th Amendment says, in part: “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” Asset forfeiture is a horrendously bad idea, and the fact that Clarence Thomas and Ruth Ginsberg both agree should tell you just how bad an idea it is.
If the government wants to take the profits from an illegal transaction, then they need to go to court and prove – beyond a reasonable doubt (which is that standard for a criminal action) – that said assets are indeed the fruit of illegal activities.
And, additionally, if they do take such action, the proceeds of such a seizure should NOT go back to the law enforcement agency involved.
Howie: My apologies for the all caps reply above. My browser wasn’t showing me what I was typing and I had forgotten cap lock was on. I didn’t mean to shout. It was a mistake.
Fat Albert has an interesting point on the Double Jeopardy Clause of the Fifth Amendment. Some years ago in a case called Kurth Ranch, the Supreme Court held that a drug tax was punishment and could not constitutionally be assessed if the person had already been punished criminally for the offense. I used that to get a criminal case dismissed when we had the client pay the drug tax assessed when he was arrested.
Since civil forfeiture is a fine, therefore a punishment, forfeiting a car or a house or money civilly is punishment and could set up a double jeopardy bar to a second punishment like prison time. A lot of my clients would gladly let the state have their cars in return for no prison.
I wish to remain anonymous says
Anyone who has educated themselves about this issue knows that Law Enforcement has been abusing this law from the beginning.
It’s hardly surprising that an ex-cop comes down on the side of continuing this abuse.
Howie Katz says
As an ex-cop I know there have been abuses, but I venture to say that the majority of asset forfeitures have been righteous. And as an ex-cop I thoroughly resent your stereotyping us as a bunch of crooks, which you are doing.
S. Walker says
The main issue I see with it is that it is way too easy for law enforcement to start and use the process. Thereby even if the person is innocent they start out with having to prove that innocence. The focus of the law should be to allow the seizure of assets when proven to have been used in or obtained from the results of an illegal act. Not we charged him with an illegal act and now are seizing the assets and are not going to have to prove the other two points of used in that illegal act or were obtained with proceeds from that illegal act. Lets say that I am transporting gold coins and cash to an event where I am anticipating possibly selling some of my coins and buying some others. I am speeding because I am late and I am pulled over and searched, does my having the coins and cash in my car constitute my having committed a crime other than the one I have already been cited for which is speeding? The answer is no and the law enforcement agency should be barred from removing them from my possession and if they do then the DA should be forced to help me get them back. Instead everyone piles on to try and get a piece of the pie which is my property in some cases and I have to pay attorneys to force them to return my legally owned property. That is the problem with the way it was before the ruling, now the rules need to be redefined.
David M Wilson says
Just to be clear, the resolution that you mentioned at the last HCRP Executive Committee meeting was never actually brought to the floor before the meeting was adjourned. I don’t want anyone to think that the amendment was supported by the HCRP or the precinct chairs who make up the Executive Committee.
At minimum, the State should be forced to prove the assets are truly proceeds from illegal activity and not be allowed to assume that they are.
Then those assets should be liquidated and the proceeds awarded to victims groups and related charities, not the State.
USE OF FORFEITURE FUNDS
Statutory guidelines govern how forfeiture funds can be expended. However, the highly aggregated format for reporting uses of the money makes it difficult to detect misappropriation.
Chapter 59 of the Code of Criminal Procedures delineates acceptable as well as unacceptable uses of seized assets. For the most part, DAs are expected to use the funds only for official purposes, and an accounting of forfeiture receipts and expenditures must be submitted to the Office of the Attorney General annually. Nonetheless, there remains considerable potential for abuse, in part because the ten broad reporting categories are not sufficiently detailed to detect questionable expenditures worthy of scrutiny. High profile abuses in the past emphasize that this is an important area of forfeiture law.
For most DAs, civil asset forfeitures are a small part of the total budget. However, there are a few offices for which forfeiture revenue equals or exceeds the budgeted appropriation.
In two-thirds of the sampled counties, forfeiture revenue is less than 10% of prosecutors’ appropriated budgets. At the same time, about 15% of counties in the study reported forfeiture proceeds exceeding 100% of their local budget. The annual Attorney General’s report is a useful resource for assessing how these funds are being expended in the 133 prosecutorial jurisdictions that have asset revenue.
One of the two largest forfeiture expenditure categories involves revenue-sharing between DAs and cooperating agencies. Salaries are another common use of forfeiture proceeds, though there is clear statutory guidance that asset revenue must not be used to supplant local funds.
In 2012, 32% of prosecutors choose to share funds with other departments, yet revenue-sharing was still the largest expenditure category. Therefore, while sharing is infrequent, amounts are large when it does occur. DAs share money with local law enforcement, both directly and by purchasing equipment and training for officers.
About 50% of all DA offices also use forfeiture money to pay salaries, the second largest expenditure category. While Chapter 54 specifies that assets cannot replace local funding, their common use to cover DA payrolls indicates that they are nonetheless being used to support.
I’m sure the hundreds of DA’s, ADA’s, and fellow LEO’s that you are personally aquainted with are ethical, true-blue choir boys and girls, but you need to understand that an informed citizenry can’t assume that the other several thousand are also. The stinking DC swamp has tributaries that reach all the way to Texas.
If Legislative oversight of these powerful agencies is any more effective in Texas than it is in Washington, I’d like to hear about it.
Howie Katz says
There you go again, in effect, stereotyping DA’s, ADA’s, and my fellow fellow LEO’s as crooks. I suggest you put your brain in gear before you put your mouth in motion!
Fat Albert says
Before you get all up in high dudgeon, you might want to peruse the report Shannon cited. @% percent of the counties they surveyed derived the majority of their revenue from asset seizures.
It’s a bad system, based on a horrendously bad law (which is unconstitutional) and is ripe for abuse. Obviously the vast majority of people in the law enforcement community are honest upstanding people. But the reality is that it doesn’t take but one or two and apples to make the whole barrel suspect. You may not like it, but that’s reality. The truth is that there ARE LEO’s and DA’s who are abusing the system.
The law needs to be changed. Taking a person’s property should only be allowed after a criminal conviction. If that makes law enforcement a bit more difficult, than that’s an issue that society needs to deal with. I remember the controversy when the Miranda ruling took effect. LEO’s across the country screamed that it would make it much harder to get convictions. But they persevered, adapted and we’re a better country for it.
Rather than complain that you’ve been slandered, try refuting Shannon’s assertions
Fat Albert says
Sorry, that’s 25 Percent.
The unacceptable and sometimes illegal actions of the DOJ and its subsidiaries in the last thirty years have been hard enough to stomach. Their actions of the last two years in attempting to overthrow an election are the crowning blow. Throw in the Harding Street murders and, yes, I think some of these people are capable of anything.
The squandered good will and respect will take generations to recover, if that is possible.
To expect them to honor such a simple idea that they are not entitled to my stuff – under any circumstances- would be idealistic; naive.
“They knew my vehicle wasn’t bought with drug money,” he said. “I’ve already been punished. So what they’re doing amounts to punishing me a second time and way out of proportion to the crime that I committed.”
I wish to remain anonymous says
Absolutely, they need to change the penal code to say 5 to 10 in the slammer and we take all your stuff too.