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By Stephanie Pankiewicz

Many people in the U.S. learned about Civil Forfeiture for the first time while watching “Last Week Tonight with John Oliver”. Most were shocked to realize the extent of what local police departments are permitted to seize without even charging someone with a crime. The police could find marijuana in a vehicle and seize the entire car. A business property seized, because a co-owner facilitated the distribution of narcotics once while inside the building. A home taken because an 18-year-old gave alcohol to their friends while at the house. These three examples sound extreme, but they are representative of how civil forfeiture law is applied every day.

In the Timbs v. Indiana case, Mr. Timbs was convicted of selling drugs, less than $1,000 worth. The Indiana Court agreed Mr. Timbs was not a high-level dealer or a “king pin.” Mr. Timbs had recently inherited money from his father’s death and used it to purchase a new vehicle, valued at $42,000. The Indiana Supreme Court agreed the vehicle was legally purchased, and had not been bought with any type of drug money. However, the Indiana Court allowed the vehicle to be taken by the police department, and kept as proceeds of the investigation. The forfeiture of the vehicle was in addition to over $1,000 in Court fines levied against Mr. Timbs.

As a public defender, I see these types of abuses happen all the time. The police search a vehicle, sometimes in violation of the U.S. Constitution, find loose pills and cash. Using forfeiture laws, the police take the cash and sometimes the car as well. In another case, the police may obtain a warrant to search a home, where they find small amounts of marijuana and plastic sandwich bags in the kitchen, as well as $4,000 under a mattress. The police conclude that because there are both sandwich bags and small amounts of marijuana, the rest of the marijuana must have been distributed. They keep the $4,000 for themselves. Often the whole criminal case is dismissed because the prosecutor cannot prove any crime occurred; however, the money is never returned.

The Eighth Amendment to the Constitution, which guarantees protections against cruel and unusual punishments, also protects us from excessive fines. In this case, Mr. Timbs, represented by the Institute for Justice, appealed the decision to have his vehicle seized. The U.S. Supreme Court heard the case and unanimously agreed that the seizure of the vehicle was an excessive fine. The Supreme Court finally made it clear in Timbs that the Amendment applies to States and States cannot issue excessive fines, i.e.  simply taking money and property. The Supreme Court in Timbs stated that this ruling applies to the States through the Due Process Clause of the Fourteenth Amendment. Timbs also held that civilly forfeited property counts as a “fine” when that property is taken as punishment.

While this decision is a decisive first step in halting law enforcement and prosecutorial abuses related to forfeiture, how far does Timbs go? Most importantly, Timbs did not clarify the definition of an “excessive fine.”

It would be impossible to impose a bright line rule or specific number defining an “excessive fine,” as each fine should be molded to fit the crime; small crimes, such as littering, should have lesser fines than more significant crimes like theft or tax fraud. Part of why the Supreme Court said the fine in Timbs was an excessive fine was because the truck was more four times the value of the highest fine the State could impose under the law. However, without some type of clear limitation, there is no legal mechanism stopping States from passing laws imposing exorbitant fines for politically unfavorable crimes.

Maryland permits a fine of up to $25,000 for the same crime that Mr. Timbs was convictedAdditionally, in Maryland if there is a prior conviction for the same charge, the fine doubles to $50,000. In other words, if this same case had occurred in Maryland, and Mr. Timbs had one prior conviction, his vehicle would have been under the maximum fine. The vehicle could have been seized, even though it had nothing to do with the prior conviction, and was purchased legally by money having nothing to do with drugs.

One of the things the defense bar must watch out for is a State race to drastically increase all fines for crimes, so that the forfeiture of property and money can be considered reasonable and not “excessive.” Fines in the thousands, or hundreds of thousands of dollars, for crimes that everyone hates. Drug crimes are the unpopular crimes of today; no one wants to defend “drug dealers” therefore large fines levied against them are politically tolerable. However, there appears to be an increase in charges of “dealing” narcotics, even for those individuals who are clearly addicts. According to current statutory definitions, if both individuals in a couple are addicted to heroin and each routinely purchases heroin for the other, they are both labeled a “dealer.” A college student who brings a joint to a party that is passed around, all students who passed it to another are “dealers.” These definitions allow the State to seize the money and property of anyone who carries even small amounts of drugs.

The repercussions of forfeiture on the lives of individuals can be vast and long-lasting. Even worse, the laws are most commonly applied to those low-income, vulnerable members of our society who are least able to fight the forfeiture. The other terrible consequence, is the property and money being seized is often from addicts and their immediate family and friends – often all members of our society who are in poverty. If the heroin addicted couple we discussed above are living in their car and it is seized (as a vehicle used in the transportation of narcotics), then the couple loses their home and only significant asset. The college student’s laptop or student loan check, could be seized because he passed around the joint at the party. These injustices occur all the time. The Supreme Court’s decision in Timbs recognizes that excessive fines are not tolerable under the U.S. Constitution. Now it is up to us to make sure the local government does not simply expand the definition of “excessive” at the expense of our most vulnerable citizens.

Stephanie Pankiewicz, Esq. is an Assistant Public Defender in Frederick County. Any views expressed in this article are her own, and not reflective of the Maryland Public Defender’s Office.