In February, the U.S. Supreme Court ruled that the Eighth Amendment’s “excessive fines” clause applies to the states. In other words, both states and the federal government are prohibited from levying excessive fines. It also ruled that civil asset forfeitures in criminal cases are fines for the purpose of the amendment. Therefore, governments in the U.S. cannot engage in excessive asset seizures.

What is civil asset forfeiture?

Civil asset forfeiture arose in the 1980s, mainly as a tactic in the War on Drugs. The idea was to deprive people of money and property they gained from, or used in the commission of, criminal activity.

If police or prosecutors designate certain money or property as having been involved in certain crimes (including minor drug crimes), they can simply seize it. At that point, the owner of the money or property must prove, in a civil proceeding, that the money was not the proceeds of, or used to commit, a crime. If they can’t prove that — and most defendants can’t — the agency that seized the money or property gets to keep it.

This all occurs before the defendant has been convicted. It sometimes happens before the defendant has even been charged with any crime.

In the Supreme Court case that ruled civil asset forfeiture must not be excessive, the asset involved was a $42,000 Land Rover SUV. The defendant, an Indiana man, was caught selling a small amount of heroin to support his own opioid addiction. He accepted being charged with a crime. He accepted being convicted and sentenced to house arrest and probation. He might even have accepted the maximum fine in his situation: $10,000.

What he couldn’t accept was that the state of Indiana seized his Land Rover, which was estimated to be worth more than four times the maximum fine.

He thought he would get it back after the Supreme Court ruled unanimously that civil asset forfeitures cannot be excessive. He’s still waiting for an Indiana court to rule on whether the seizure was excessive in his particular case.

What makes an asset seizure ‘excessive’?

Unfortunately, the Supreme Court ruling did not define what constitutes an “excessive” fine or seizure. Most experts think that means we’ll have to wait for further developments in the law. Individual asset seizures will have to be challenged in court, and then appeals courts will have to uphold or deny those challenges. This will slowly build a definition of “excessive.”

In the meantime, people will still be subjected to civil asset forfeitures. If the police or a state agency has seized your property in connection with a criminal case, contact an experienced criminal defense attorney for help.