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 litigate the matter. 

However, on Feb. 20, 2019, the new makeup of the U.S. Supreme Court 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 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. 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, who agreed with the trial court. 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?

Right now, these questions cannot be answered.