It happens multiple times in Wisconsin courts on any one day: a criminal defendant is found guilty of dealing in controlled substances and after selling four grams of heroin to undercover police officers. The defendant may be sentenced to probation with conditional jail time. But not satisfied with that punishment, in one forum or another, the State of Wisconsin will seek to seize the defendant’s vehicle which he had used to purchase, transport and sell the drugs.
Under Wisconsin law, any property used in the course of, intended for use in the course of, or directly or indirectly derived from or realized through the commission of any crime can be forfeited. Wis. Stat. Sec. 973.075. It does not matter if it is a vehicle or scuba gear, Wisconsin can try to seize the property. Id. Even if the criminal defendant dies and there is no state or federal conviction, Wisconsin can seize the property and accept proceeds from the sale of the property. Id. Not only is this true, but the State of Wisconsin conveniently shifts the burden to the individual to show why the property should not be seized. Wis. Stat. Sec. 973.077. This shift in the burden exists despite Wisconsin forfeitures supposedly being done “with due provision for the rights of innocent persons.” Wis. Stat. Sec. 973.075 (5).
The randomness of the risks to the innocent owner that are posed by forfeiture laws have been identified by Justice Thomas and Ginsburg:
The limits on what property can be forfeited as a result of what wrongdoing — for example, what it means to “use” property in crime for purposes of forfeiture law – are not clear to me…Those limits, whatever they may be, become especially significant when they are the sole restrictions on the state’s ability to take property from those it merely suspects, or does not even suspect, of colluding in crime.
. . . . .
Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice. When the property sought to be forfeited has been entrusted by its owner to one who uses it for crime, however, the Constitution apparently assigns to the States and to the political branches of the Federal Government the primary responsibility for avoiding that result. Bennis v. Michigan, 516 U.S. 442, 455-57 (1996) (Justices Thomas and Ginsburg, concurring).
As U.S. Senator Kamala Harris of California, a 2020 Democratic presidential candidate, wrote on Twitter, “Like our broken cash bail system, excessive fines and confiscation of property lead to the criminalization of poverty.” It should be recalled that the Supreme Court had previously held that forfeitures constitute fines for the purposes of the Excessive Fines Clause. See Austin v. United States, 509 U.S. 602 (1993) (civil forfeitures); Alexander v. United States, 509 U.S. 544 (1993) (criminal forfeitures). It is true that the poorest citizens carry the burden from fines which include “poverty penalties,” i.e., the cost of the original fine plus late fees, interest and administrative fees and even fees for a payment plan. Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 2-8 (2018).
Clearly, the US system of fines and fees has created a two-tiered legal system that separates those who have the ability to pay from those who don’t with judges and court clerks using fines and fees to punish poor people in unequal and enduring ways. Even small amounts of legal debt can be insurmountable obstacles for people living on the margins. Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 152 (New York: Russell Sage Foundation, 2016). As explained in Criminal Justice Policy Program at Harvard Law Sch., Confronting Criminal Justice Debt: A Guide for Policy Reform 15 (2016):
By disproportionately burdening poor people with financial sanctions, and by jailing people who lack the means to pay, many jurisdictions have created a two-tiered system of criminal justice. Unchecked, these policies drive mass incarceration. Excessive fees and fines needlessly enmesh poor people in the criminal justice system by spawning arrests, court proceedings, periods of incarceration, and other modes of supervision for those who lack the ability to pay. Criminal justice debt also contributes to mass incarceration by destabilizing people living at the economic margins and by impeding reentry of formerly incarcerated people who face impossible economic burdens, leading to cycles of poverty and imprisonment. Id at 1.
It is simply amazing that local governments and municipalities have learned nothing from what happened in Ferguson where the system was run:
on the backs of their poorest and most politically vulnerable citizens. The municipalities appeared to be targeting low-income and black communities with these practices. For example, fines were collected at rates more than fif-teen times higher in one low-income, majority-black community than in a more affluent neighboring municipality. Ferguson was among the three worst offenders. Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171, 1174-75 (2017) (footnotes omitted). See also, Lawyers Comm. for Civil Rights of the San Francisco Bay Area, Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California, 9 (2016)
There now exists empirical date that shows how low-income defendants are affected by monetary sanctions, which include fees for public defenders and a variety of processing charges. Until these debts are paid in full, individuals remain under judicial supervision, subject to court summons, warrants, and jail stays. As a result of interest and surcharges that accumulate on unpaid financial penalties, these monetary sanctions often become insurmountable legal debts which many offenders carry for the remainder of their lives. Such fiscal sentences, which are imposed disproportionately on low-income minorities, help create a permanent economic underclass and deepen social stratification. Alexes Harris, A Pound of Flesh: Monetary Sanctions as a Punishment for the Poor. (New York: Russell Sage, American Sociological Association’s Rose Monograph Series 2016). And lets not forget that poor citizens are less likely to vote, and to have access to other forms of political power, so governments may find it easier to target fines against them. It has also been established that police departments often use civil asset forfeiture and other methods to supplement allocated funding. Worrall and Kovandzic, “Is policing for profit? Answers from asset forfeiture,” 7 Uni. Texas, Dallas, 2 (2008)
The counter-productive nature of imposing excessive fines interferes with society’s need to have a convicted person successfully re-enter society:
The court’s long-term involvement in [debtor’s] lives [during collections] inhibits reentry: legal or background checks will show an active rec-ord in superior court for individuals who have not fully paid their [criminal debt]. . . . This active record can have serious negative conse-quences on employment, on housing, and on finances. [Criminal] debt also impacts credit rat-ings, making it more difficult to find secure housing. State v. Blazina, 344 P.3d 680, 684 (Wash. 2015) (citation omitted).
There may be some hope against the insanity of this system. In Timbs v. Indiana, 586 U. S. ____ (2019) the US Supreme Court held that the Eighth Amendment’s ban on excessive fines applies to the states. The decision revolved around an Indiana man whose luxury SUV was seized after he pleaded guilty to selling heroin. .” Justice Neil Gorsuch explained in a separate opinion, which joined the majority’s opinion, that “regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.” This decision may stand as precedent against policing for profit.
The arrogance of the government is exemplified in the oral argument for Timbs when Indiana Solicitor General Thomas Fisher found himself arguing that the Constitution would let him forfeit luxury cars caught going five miles over the speed limit. Incredulous of Fisher’s position, Justice Stephen Breyer asked him, “So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy?” Fisher responded that “there is no excessive fines issue” for in rem civil forfeitures, and were completely outside the protection of this constitutional safeguard. So a speeding Bugatti would be “forfeitable,” adding that in rem forfeitures “have always been harsh.” Justice Sonia Sotomayor quickly rebuked Fisher, and reminded him that “up to a certain point in our history, we didn’t apply the Bill of Rights to the states,” which “did things that under incorporation were unconstitutional.”