Lawmakers Should Keep Supreme Court Ruling in Mind While Considering Civil Asset Forfeiture Bill

McLean County State's Attorney Ladd Erickson testifies against legislation reforming civil asset forfeiture. Tom Stromme / Bismarck Tribune

HB1286, introduced by Rep. Rick Becker (R-Bismarck), would require a conviction before law enforcement can forfeit (read: keep) property or cash seized during a criminal proceeding. It would also put in place some reporting requirements for forfeitures conducted in the state.

The bill did well in the House Judiciary Committee, emerging with an 11-3 “do pass” recommendation despite heavy lobbying against it by law enforcement. The bill should be coming to the floor some time today, before the House adjourns for crossover break.

I expect the bill will likely pass in the House. A similar version did last session, in 2018, on a 50-42 vote. Sadly, it died in the Senate without a single vote in favor.

The U.S. Supreme Court may have just given lawmakers more urgency to act this year.

The U.S. Supreme Court may have just given lawmakers more urgency to act this year.

Timbs vs. Indiana is a criminal case wherein a man who was ultimately fined $10,000 after being convicted of drug charges saw his $40,000 Land Rover forfeited to the state. The Supreme Court, in a unanimous decision (read below), held that the 8th amendment’s protections against cruel and unusual punishment would apply to this situation. They took the step of incorporating the 8th amendment to the states.

It was a narrow decision in that they held  the 8th amendment applies, but they didn’t rule on whether or not this particular seizure violates the 8th amendment. They’ve remanded the case back to the lower courts for additional proceedings.

But it’s hard to imagine a world in which a forfeiture of property worth multiples the fine in a given criminal case is considered a fair outcome under the 8th amendment.

What does this mean for North Dakota?

Right now state law allows for property seized by the police to be forfeited even without a conviction. As an example, last year a case in which a man acquitted of charges related to the protests against the Dakota Access Pipeline saw the state try to keep his pickup anyway.

If the end result of the Timbs case is holding that a forfeiture worth more than the fine in a criminal case is unconstitutional, does it not follow that a forfeiture in a case where there’s no fine at all because the defendant was found innocent (or never even charged, as the case may be) is also unconstitutional?

Law enforcement argues that they need the status quo to facilitate prosecution of crime that may cross jurisdictional bounds. You can read McLean County State’s Attorney Ladd Erickson make that case here on SAB (and listen to his debate with defense attorney Mark Friese on Plain Talk). But law enforcement convenience is not a good enough justification for denying Americans their constitutional rights.

I’m fine with forfeiting property after a conviction, as long as the forfeiture is commensurate to the crime. But if there’s no conviction, there should be no forfeiture, and it sure seems like that’s the position the courts are going to be taking in the future.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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