On the issue of civil assert forfeiture, Ilya Somin notes on The Volokh Conspiracy that SCOTUS may impact the issue in the near future:
Yesterday, the Supreme Court decided to consider Timbs v. Indiana, an important constitutional property rights case. As my co-blogger Eugene Volokh and Reason’s Damon Root explain, the case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as “excessive” and to what extent the Clause applies to asset forfeitures, as well as more conventional fines.
Like Eugene and Damon, I believe the case for “incorporation” of the Clause against the states is extremely strong, and should command widespread agreement on the Court. The other issues are somewhat tougher. But there is still a strong argument for using the Clause to impose significant constraints on at least a wide range of asset forfeitures.
The Bill of Rights was originally intended to restrict only the federal government. But, as leading scholars on both right and left have come to recognize, the framers of the Fourteenth Amendment sought to apply the Bill of Rights against the states, as part of their more general effort to curb state governments’ abusive mistreatment of minorities and others, most notably recently freed African-American slaves. As Eugene describes in some detail, the Supreme Court initially refused to apply the Bill of Rights to the states, even after the Fourteenth Amendment. But has gradually ruled that nearly all of the individual rights listed there are in fact incorporated. Multiple lower court decisions have ruled that the Third Amendment – one of the few provisions not yet addressed by the Supreme Court – should be incorporated, as well.
Here’s hoping. Somin seems cautiously optimistic, and at some point notes that Justice Thomas appears to share my view that forfeiture is basically punishment without due process.
But, more importantly, civil asset forfeiture undermines faith in our democracy, as it’s basically arbitrary seizure of property. The damage that does is well out of proportion to any good it may bring the system, and it’s also a temptation to corruption, to boot. Not all tools are good tools.
