Officials in Arkansas absorbing justices' decision in forfeiture case

Lawmakers sponsoring asset-forfeiture bill plan to slow roll

A unanimous ruling Wednesday from the nation's highest court will force Arkansas prosecutors and judges to re-evaluate some civil cases filed by law enforcement authorities to keep cash and other assets seized during criminal investigations, officials said.

The U.S. Supreme Court found that Indiana must consider whether taking a $42,000 Land Rover from a man convicted of selling heroin constitutes an "excessive fine" under the Eighth Amendment to the U.S. Constitution. It was the first application of the "excessive fine" clause to civil asset forfeiture cases handled at the state level.

Although Arkansas prosecutors were still digesting the ruling in Timbs v. Indiana, some said it appeared to be less broad than at first blush: Cash derived from drug sales, and vehicles used to deliver narcotics, may still be subject to state "civil asset forfeiture" laws regardless of their value, they said.

"I think my reaction is that Indiana picked the wrong case to appeal," said Scott Ellington, prosecuting attorney for the Jonesboro-based 2nd Judicial District. "We're going to have to wait and see how it plays out ... but I do not think the sky is falling because this ruling was handed out today."

Law enforcement officers can confiscate cash, vehicles, weapons and other assets during criminal investigations, particularly in drug cases. Prosecutors decide whether to file civil cases allowing the state to keep that property. Those cases are handled at the circuit court level and are subject to appeal.

[RELATED: Complete Democrat-Gazette coverage of the Arkansas Legislature]

Arkansas law enforcement agencies seized nearly $88 million in cash from 2010-18, about $9.7 million per year, according to data collected by Jeremy Horpedahl, assistant professor of economics at the University of Central Arkansas.

That does not include the value for roughly 4,900 vehicles, at least 3,300 weapons and 1,000 other pieces of property confiscated in that span, according to numbers provided by Horpedahl, who has been tracking the data since a former student wrote a thesis on civil asset forfeiture in the state.

Before the court's ruling, lawmakers in Little Rock had taken an interest in addressing civil asset forfeiture during the ongoing legislative session.

Legislation filed earlier this month as Senate Bill 308 would require conviction for a felony offense before someone's property could be permanently seized as part of a civil judgment.

The bill's sponsors, state Sen. Bart Hester, R-Cave Springs, and Rep. Austin McCollum, R- Bentonville, said they were reviewing the high court's decision Wednesday to determine if they needed to re-work the legislation.

"Because of the ruling, we have slowed down running the bill," McCollum said, before adding that they still plan to raise the bill for a committee vote in the next few weeks.

The legislation proposed by the two lawmakers does not address the amount of the property seized in relation to the crime, as the Supreme Court addressed in its opinion. The bill would provide several exceptions when the property could be seized without a conviction, such as if the suspect fled or died.

The Arkansas Prosecutor Coordinator's Office supports Hester and McCollum's bill, said director Bob McMahan. The prosecutor added that he had not had time Wednesday to fully review the Supreme Court's decision.

The Timbs v. Indiana ruling overturned an Indiana Supreme Court decision that found it proper for police to seize a $42,000 Land Rover from Tyson Timbs after he pleaded guilty to selling a controlled substance and conspiracy to commit theft.

An Indiana trial court ruled that the seizure of Timbs' vehicle was excessive because the maximum fine was $10,000, less than one-fourth of what he paid for the vehicle. Timbs bought the Land Rover with money he received from an insurance policy when his father died, according to the opinion.

An appellate court upheld that ruling, but the Indiana Supreme Court found that the forfeiture was appropriate because the Eighth Amendment excessive-fines clause had not been applied to civil forfeiture cases against property.

Supreme Court Associate Justice Ruth Bader Ginsburg, writing the opinion, traced protections from excessive fines to language in the Magna Carta, Great Britain's charter from more than eight centuries ago.

"For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties," she wrote.

Arkansas law sends 80 percent of money from the first $250,000 of each forfeiture to local law enforcement agencies involved in the seizure and the prosecuting attorney's office. The remainder is set aside to buy equipment at the state Crime Laboratory.

Forfeited proceeds over $250,000 are sent to the state drug director to be deposited in a special state fund for use in drug interdiction, education, rehabilitation, drug courts and the state Crime Lab.

Gregg Parrish, the director of the Arkansas Public Defender Commission, said Wednesday's decision affirmed the jurisdiction of state courts to decide whether forfeitures are excessive under the Eighth Amendment.

The effect on Arkansans wrapped up in such cases, he said, would likely trickle down on a case-by-case basis.

"They're going to have to start evaluating forfeitures," Parrish said. "Putting a value with regard to the crime charged."

"Basically, is it fair?" he added.

Horpedahl, the UCA professor, called the ruling a "pretty big step," but noted that most cash seizures by law enforcement are less than $1,000.

Horpedahl said his data from 2010-18 includes 9,976 cases in which cash was taken and a dollar amount was listed.

Of those, 51.7 percent were for $1,000 or less and 26.9 percent were for $500 or less, he said. Conversely, there were 15 seizures for $1 million or more, and 32 for $500,000 or more.

Horpedahl said people often lose small-dollar amounts or low-value assets without a criminal conviction because they don't have the means to challenge a forfeiture filing. That underscores the importance of the draft bill by Hester and McCollum, he said.

"If a law like [SB308] were passed or if the law was changed so they did have to have a conviction, it would probably eliminate a lot of those small cash takings," Horpedahl said.

Arkansas Drug Director Kirk Lane said he does not believe the ruling would apply to vehicles that were used as part of a crime -- a car used to deliver drugs to buyers or from which drugs are sold, for example -- or property purchased with money earned from selling narcotics.

Arkansas' law has established two tracks for seizing property, Lane said.

"One of them is a [civil] court case against the asset," Lane said. "One of them is a court case against the alleged criminal offense. ... That's the way our law is set up, so [forfeiture is] not viewed as a fine. It lets the allegation against the asset stand on its own merit."

The Indiana high court ruling noted that Timbs admitted in court to driving the Land Rover to acquire heroin. The U.S. Supreme Court decision said Indiana had accused Timbs of transporting heroin in the vehicle.

But Lane and Ellington, the northeast Arkansas prosecutor, said it wasn't immediately clear whether that was an established fact for the purpose of the decision.

That's important, in their view, because if it was not part of the decision, then the ruling would have little bearing on prosecutors seeking forfeitures for vehicles or other property used in commission of a crime.

"We would make the argument that if the deliveries were made from this vehicle, no matter what funds he used to purchase the vehicle, we would ask the court for an order of forfeiture because he's using that to make the delivery," Ellington said.

John Johnson, chief deputy prosecutor for Pulaski County, said high-dollar seizures in central Arkansas are typically handled by the federal government. He and others noted that prosecutors must prove a connection between the property and the crime to justify forfeiture.

"It sounds [like] they were tying the value of the item seized to the potential penalty," Johnson said of the court's decision. "They didn't want the civil penalty to exorbitantly add to the criminal penalty the person was already suffering."

A Section on 02/21/2019