Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Timbs v. Indiana: A First, Tentative Step Towards the Elimination of Civil Asset Forfeiture?
SCOTUS today announced its decision in Timbs v. Indiana. It is good, but not great news. All nine justices agreed that the prohibition on excessive fines found in the Eighth Amendment applied to state civil forfeiture actions. The unanimity is particularly nice to see and the result is a step in the right direction. Gorsuch and Thomas wrote separately to make the true — but at this time, pedantic — point that the privileges and immunities clause of the 14th Amendment rather than the oxymoronic “substantive due process” doctrine should be the vehicle for incorporation.
The case stopped short, however, of banning civil asset forfeitures. It remanded for further proceedings — presumably on the question of the excessiveness of the forfeiture involved in the case.
I had hoped for a more expansive opinion that would put an end to the constitutionally loathsome practice of confiscating the property of citizens without obtaining a criminal conviction to justify the confiscation. But it appears that the Roberts Court will continue to take small steps, deciding no more than necessary to decide the issues presented to it. At least that’s what it did here.
Nothing in any of the opinions that I can find sheds any light on whether civil asset forfeiture is long for this world or not, though I am hopeful that at least some of the justices see this as a stepping stone to resolving that question in favor of the victims of the noxious practice.
Published in General
Thanks. At first this legal theory sounds weird to a layman.
But I guess it’s logical. If we lock up people who’ve committed a crime, we should lock up things which have committed a crime, for the same reasons:
I admit that I’m being ironic. But only to make it clear that this legal theory makes no sense to me from the start, and I’ve not even gotten to the fact that punishing a thing through forfeiture also involves human beings, whose rights are the subject of more traditional ideas about law.
It deserves the ridicule. But it is an ancient distinction in the kinds of legal actions that can be brought. There are actions brought in personam, which are actions brought against a person – to get them to pay a debt, punish them for a crime, compensate for damages, etc.
And then there are actions in rem, which are brought to essentially determine the ownership of property, either real or personal property. Because no money or punishment is sought, the case is said to be against the property itself, which is not really an accurate way to describe it. In this context, that distinction gives the government cover for a lower level of due process – it’s only about the property after all, so we don’t need to mess around with all the other safeguards that apply to in personam actions.
Well, since it is ancient, it probably does not deserve the ridicule of a tyro such as me.
So thanks a whole lot, Venters. Again, it turns out that I still don’t know everything, and I have to read more stuff.
I just hope when I do a search on these two Latin terms, the content is in Modern American.