For decades, state and local governments have looked to something called a civil in rem forfeiture as a funding mechanism. Here, property used in connection with the commission of a crime can be seized and forfeited. Afterwards, the property is taken from the owner and becomes an asset of the government.

For example, if a person is stopped for speeding and has $30,000 and a large bag of methamphetamine in the front passenger seat, he or she will be arrested for trafficking. But, their liberty is not the only loss they face. The State can file a forfeiture action to take the cash and the car. In Georgia, the defendant can answer the State’s complaint and litigate the matter.

However, on Feb. 20, 2019, the new makeup of the U.S. Supreme Court (SCOTUS) issued a surprising unanimous decision that may limit this practice. The opinion also gave us a glimpse into SCOTUS’s collective view of the Bill of Rights

In Timbs v. Indiana, SCOTUS held that protection against excess fines set forth in the Eighth Amendment of the U.S. Constitution applies to state and local governments and that civil in rem forfeitures can be considered excessive fines under that amendment. This case is significant because it may jeopardize asset-forfeiture programs that help fund local governments, states, and law enforcement across the country.

Timbs pleaded guilty in Indiana state trial court to selling a controlled substance and conspiracy to commit theft. The state trial court sentenced him to one year of home detention and five years of probation, including a court-supervised addiction-treatment program. Timbs was also required to pay fees and costs totaling $1,203. The maximum fine for Timbs’ drug conviction was $10,000.

At the time of his arrest, local police seized Timbs’ Land Rover, which he had recently purchased for more than $42,000 with funds he inherited from his father. The state began a civil forfeiture action, claiming that the vehicle was used to transport heroin and therefore subject to forfeiture.

The trial court found that Timbs used the vehicle to transport illegal drugs, facilitating the commission of a crime. However, the court denied the forfeiture, citing the Eighth Amendment and observing that the vehicle’s value exceeded four times the maximum fine Timbs faced in connection with his criminal conviction. The forfeiture, therefore, violated the protections of Eighth Amendment.

The case made it all the way to SCOTUS. SCOTUS agreed with the trial court. Writing for the unanimous Court, Justice Ruth Bader Ginsburg pointed out that the safeguards set forth in the Bill of Rights apply equally to state governments if they are “fundamental to our scheme of ordered liberty, with deep roots in our history and tradition.” To show that the Excessive Fines Clause is such a fundamental safeguard, Justice Ginsburg provided a history lesson, tracing the right against the imposition of excessive fines back to the Magna Carta.

Justice Clarence Thomas issued a concurring opinion that provided an even deeper historical analysis. He traced the right against excessive fines further back in history to the reign of Henry I, more than 100 years before the Magna Carta. He also expounded on how excessive fines were used in the post-Civil War South as an attempt to re-impose slavery.

Justice Gorsuch also issued a short concurring opinion, simply pointing out that the Eighth Amendment is a fundamental constitutional right that applies to the states by way of the Fourteenth Amendment. (The 14th Amendment is almost always used to apply federal constitutional rights and laws to the individual states.)

There are several questions regarding how Timbs will affect our people. How will cities that rely on this income replace it? How will judges treat unanswered forfeiture complaints and default judgments? Will the Georgia General Assembly and governor change the forfeiture statute in the near future?

Right now, these questions cannot be answered. But, the impact in Georgia may not be so heavy. The more serious drug offenses provide for maximum fines in the hundreds of thousands of dollars and can reach over a million dollars. Prosecutors in these bigger cases will argue that Timbs was factually the opposite because the maximum fine in Indiana was $10,000.

It will be interesting to see how the Georgia courts interpret Timbs in the large and small drug prosecutions across the state. Jason W. Swindle, Sr.
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