Last week’s unanimous Supreme Court decision that the Eighth Amendment’s excessive fines clause applies to the states is garnering praise, but it is unclear how much the decision’s impact will be felt in Maryland, where legislators have been chipping away at the practice of asset forfeiture in recent years.
Maryland law allows the government to seize property, with or without criminal charges against the owner, and file a civil forfeiture action claiming the property was used or obtained illegally.
Police say forfeiture is a vital tool in dismantling criminal organizations, but asset forfeiture opponents argue that people can lose their homes and cars without having been charged with a crime. Opponents also say it’s difficult to challenge seizures in court.
In the Supreme Court case, an Indiana man had his $42,000 Land Rover seized in connection with drug possession charges that carried a maximum fine of $10,000. The state filed a civil forfeiture lawsuit, but the high court determined the excessive fines clause applied. A trial court previously ruled against the government, saying that taking the car would be “grossly disproportional” to the offense.
Samuel B. Gedge, one of the attorneys representing the Indiana man, said he expected to see the excessive fines argument raised more frequently now but does not expect it to apply to many cases.
“As a practical matter, most forfeiture cases and most cases involving fines won’t give rise to successful challenges under the excessive fines clause,” said Gedge, of the Institute for Justice in Arlington, Virginia.
Gedge called the clause “a vital safety valve” to protect citizens and said the Supreme Court case has raised its profile. Gedge also said the case had drawn attention to other, related issues, such as the systems in some states that provide a profit motive to police, who are allowed to seize property and then take possession of the funds.
“Unlike virtually every other kind of punishment, the government makes money when it fines us and seizes property,” Gedge said.
Maryland does not provide such a motive for local law enforcement, as it mandates that funds from seized property be deposited in the state’s general fund. In 2016, the law was adjusted to earmark 20 percent of any deposit for drug and alcohol treatment and education.
New laws also increase the burden on the state to prove that the owner of seized property was aware of its ties to drug crimes and to create a mechanism for the owner to contact the seizing agency and ask for the property’s return.
“Maryland has implemented some really solid reforms lately,” Gedge said.
Recent reform efforts in Maryland have attempted to restrict when and how law enforcement agencies participate in the U.S. Department of Justice’s equitable sharing program.
The program allows property seized locally to be forfeited federally if the local law enforcement agency turns the property over to a federal agency, which can “adopt” the property, or if the local agency participated in a joint investigation with a federal agency.
Sen. Michael J. Hough, R-Frederick and Carroll, who sponsored the Senate legislation in 2016, said that though Maryland has reformed its laws, most law enforcement agencies in the state are not using the Maryland system for the bulk of their seizures.
“When you made tweaks to the state laws … no one really cared; it was when you touched the federal equitable sharing and you put guidelines on that, that’s when (law enforcement) cared,” he said.
Gedge said the Institute for Justice has observed that when states limit forfeitures, local law enforcement agencies begin funneling more money through the federal program.
Maryland law enforcement had more than $7.6 million in cash and sold property processed through the federal equitable sharing program in fiscal year 2018. Unlike state law forfeiture proceeds, which go into the general fund, the U.S. Department of Justice returns a portion of the seizure funds and usually mandates the money be used for law enforcement purposes — thereby restoring the profit incentive opposed by advocates.
Hough said Maryland added restrictions on the use of the federal program in 2015 and 2016 legislation. The restrictions included the institution of a $50,000 minimum value threshold before property can be transferred to the federal equitable sharing program and a requirement that the property be related to a federal prosecution.
“Getting at the federal equitable sharing and reforming that was the biggest part of it,” Hough said of the 2016 law.
Sen. William C. “Will” Smith, D-Montgomery, sponsored legislation this session to prohibit Maryland’s participation in the federal equitable sharing program. Smith was unavailable for comment Tuesday.
The measure, Senate Bill 764, is to have a hearing before the Senate Judicial Proceedings Committee on March 12.
Recent laws have sought to make information about asset seizures public. The Governor’s Office of Crime Control and Prevention released its first report in September 2018, though it included data only from the end of 2017.
Gedge said reporting requirements were becoming more common.
“It really is a critical first step because without that kind of comprehensive data, each side of the debate is just hurling anecdotes at the other side,” he said.
Between Sept. 1, 2017, and Dec. 1, 2017, Maryland law enforcement seized 1,881 property items from 1,691 individuals. By March 1, 2018, only 56 property items had been officially forfeited and in five cases the federal government took control of the seized property.
The Baltimore Police Department was the most active seizing authority in that period, accounting for more than half of property items seized out of a total of 46 Maryland law enforcement agencies that reported seizures.
City Solicitor Andre M. Davis said his office was still studying the Supreme Court opinion and will undertake a review of seizure policies to see if there will be any impact. He said that most of Baltimore’s seizure cases are resolved by agreement between the parties and that he does not expect much of a change.
The next most active jurisdictions were Baltimore County (177 items seized), Prince George’s County (116) and Montgomery County (105).