PART OF the Bill of Rights, the Eighth Amendment to the Constitution prohibits the federal government from imposing “excessive fines” on individuals. Last month, the U.S. Supreme Court unanimously ruled that this prohibition applies to the states in civil asset forfeiture cases as well.

Before the ruling, law enforcement agencies in Virginia could seize personal property from an individual on the mere suspicion that it had been involved in criminal activity and keep it—even if the owner was never convicted of a crime.

It was up to the property owner to hire an attorney to try to prove that the property should be returned—a time-consuming endeavor that often cost more than the seized property was worth.



According to the Arlington-based Institute for Justice, Virginia provided a tempting incentive to seize property by allowing law enforcement to retain 100 percent of forfeiture proceeds. Participating agencies were allowed to keep 90 percent of seized property, with the remaining 10 percent sent to the state’s Department of Criminal Justice Services.

The Institute’s report, “Policing for Profit,” pointed out that the arrangement created an obvious moral hazard. Under a Freedom of Information Act request, the non-profit group found that between 2000 and 2014, law enforcement agencies throughout the commonwealth had seized property worth more than $34 million.

But the General Assembly refused to ban this practice. The latest attempt was HB2096, a bill patroned by Del. Nick Freitas, R–Culpeper, which would have required that any personal property seized by law enforcement not be forfeited until the owner has “been found guilty of the crime authorizing the forfeiture.”

Freitas’ bill was tabled on Jan. 23 by a House Courts of Justice subcommittee. Lawmakers apparently didn’t want that pesky Bill of Rights interfering with a $34 million revenue source.

But on Feb. 20, the Supreme Court—in an historic and rare 9–0 decision—ruled that the Eighth Amendment’s prohibition of “excessive fines” also applies to states as well as the federal government.

The Institute for Justice represented Tyson Timbs, a small-time offender in Indiana who pleaded guilty to selling $225 of heroin to undercover police officers and was sentenced to one year of house arrest, including a court-ordered addiction treatment program, five years of probation and $1,200 in fines and court fees. However, the state refused to return Timbs’ $42,000 Land Rover, which he bought using money he obtained from his father’s life insurance policy, claiming he had used it to commit his crime.

Institute lawyers successfully argued that the seizure of Timbs’ vehicle was excessive.

Writing for the court, Justice Ruth Bader Ginsburg agreed, pointing out that the Land Rover was worth “more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction,” making its forfeiture excessive under the Eighth Amendment.

“The protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is ‘fundamental to our scheme of ordered liberty,’ with ‘deep roots in our history and tradition’.” And this protection applies to states as well as the federal government under the 14th Amendment’s equal protection clause, Ginsburg wrote.

Justice Clarence Thomas concurred, only noting that this right preceded the 14th Amendment, and “at the time of the [nation’s] founding, the prohibition on excessive fines was a longstanding right of Englishmen.”

Thomas also pointed out that after the Emancipation Proclamation, “under Mississippi law, adult ‘freedmen, free negroes and mulattoes’ ‘without lawful employment’ faced $50 in fines and 10 days’ imprisonment for vagrancy.” Those unable to pay the steep fines were arrested and “leased” to anyone who paid them in a “reenactment of slavery.”

Although civil asset forfeiture is understandably popular with law enforcement agencies, the Supreme Court wisely put limits on its use.

“Increasingly, our justice system has come to rely on fines, fees and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets,” said Scott Bullock, the Institute for Justice’s president and general counsel. “This is not just an ominous trend; it is a dangerous one. We are grateful that the U.S. Supreme Court established that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.”

Individuals who are guilty of crimes should not be able to keep the fruits of their criminal behavior. But the forfeiture of tainted assets should be done after, not before, conviction.

And any gain realized from the sale of such property should not be used to directly benefit the law enforcement agency that seized it.