Horry County Judge Declares SC’s Forfeiture Statutes Unconstitutional

In Richardson v. Green, an Horry County, SC, judge has issued an Order declaring SC’s forfeiture statutes unconstitutional because they violate the Eighth Amendment prohibition on excessive fines and also because they violate Due Process under the Fifth and Fourteenth Amendments:

This Court finds that South Carolina’s forfeiture statutes, S.C. Code Sections 44-53-520 and 44-53-530, violate the prohibition on excessive fines found in the Eighth Amendment to the U.S. Constitution and Article I, Section 15 of the S.C. Constitution.

Furthermore, this Court finds that S.C. Code Sections 44-53-520 and 44-53-530 violate due process under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section Three of the S.C. Constitution in that the forfeiture statutes 1) place the burden on the property owner to prove their innocence, 2) unconstitutionally institutionally incentivize forfeiture officials to prosecute forfeiture actions, and 3) do not mandate judicial review or judicial authorization prior to or subsequent to the seizure.

Why are SC’s forfeiture statutes unconstitutional? Have other courts come to the same conclusion?

Why are SC’s Forfeiture Statutes Unconstitutional?

I’ve said before that SC and other states need civil asset forfeiture reform now:

Asset forfeiture has become a mainstay of funding for many law enforcement agencies. Fishing for forfeiture funds on the nation’s highways has become something of a game for many law enforcement officials, resulting in recognition and other rewards for the officers who can rake in the most cash in a calendar year.

To get the high score, police across the country are making “pretext stops” for the primary purpose of looking for money to take. When you are pulled over for what you thought was a speeding ticket and, within 60 seconds of appearing at your window, the officer asks, “How much money are you carrying in your car,” you are not alone – it is happening to motorists everywhere.

If you’ve ever been in this situation, you know that it doesn’t seem fair. You probably felt helpless as officers searched your car, looking for cash to seize. Something seems inherently wrong when government agents armed with guns are stopping vehicles and searching them for cash to seize.

Unfair, helpless, and wrong aren’t exactly legal terms, though. If the courts are going to do anything to guide our nation towards a more reasoned approach to civil asset forfeiture, the courts need to know what specific rights are being violated – why are SC’s forfeiture statues unconstitutional?

Eighth Amendment Excessive Fines Clause

The US Supreme Court held that the Eighth Amendment’s prohibition on excessive fines applies to the states in Timbs v. Indiana. Does a forfeiture scheme that allows the government to seize and keep funds or property in excess of the potential maximum fine for a criminal offense violate the Excessive Fines Clause?

What if there is no crime charged at all? The trial court in Richardson v. Green stated:

This Court finds that South Carolina’s forfeiture statutes violate both the federal and S.C. constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

Although SC’s forfeiture statutes are civil “in-rem” proceedings and not “criminal” – meaning the “defendant” is actually the property the government seeks to take and the “human defendant” is only named in the action because they have an interest in the property – the Court noted that the Excessive Fines Clause may still apply where the forfeiture is at least partially punitive:

The Excessive Fines Clause applies to the states under the Fourteenth Amendment’s Due Process Clause. Timbs, 586 U.S., citing United States v. Bajakajian, 524 U. S. 321, 327–328 (1998) (quoting Austin v. United States, 509 U. S. 602, 609–610 (1993)). Furthermore, the Excessive Fines Clause applies to civil in rem forfeitures when they are at least partially punitive. Austin, 509 U.S. 602.

The Court went on, however, to explain why SC’s forfeiture statutes are also unconstitutional under the Due Process Clauses of the Fifth and Fourteenth Amendments.

SC’s Forfeiture Statutes are Unconstitutional Because they Violate Due Process

The Court found that SC’s forfeiture statutes are unconstitutional violations of Due Process because 1) the burden of proof is on the property owner, 2) there is no meaningful judicial review before or immediately after the seizure, and 3) because each agency profits from and controls the forfeiture income, there is an unconstitutional incentive for forfeiture officials.

The Burden is on the Property Owner to Prove their Innocence

The Court found that it is a violation of Due Process to force the property owner to prove that their money or property is derived from a legitimate source:

This Court finds that South Carolina’s forfeiture procedures violate the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section Three of the S.C. Constitution by failing to provide meaningful protections for the due process rights of defendants in that it places the burden of proof on property owners and allows the state to seize and withhold money or other property when a defendant has not been convicted of a crime, when a defendant has not even been charged with a crime, or when the government has not provided any meaningful evidence that the property is connected with a crime.

The state’s burden of proof consists of showing probable cause – at a hearing that may be months or years after the property was seized – that the money, vehicle, or other property was connected to illegal activity.

After the state meets this minimal burden of showing “some evidence” that the property is subject to forfeiture, the property owner must provide receipts, documents, or testimony to prove that their property belongs to them and comes from a legitimate source.

Insufficient Judicial Review of Forfeiture Decisions

SC’s forfeiture statutes have no provision for a pre-seizure hearing. The provision for a post-seizure hearing requires only that the state file a lawsuit “within a reasonable time of the seizure:”

Under South Carolina Code § 44-53-530(c), the seizing agency is required to file a forfeiture action within a reasonable time of the seizure. The statute does not define a reasonable time. The law permits a seizure without a warrant if the seizure is made as incident to arrest or if probable cause exists to believe that the property was used in violation of the drug laws. See, S.C. Code § 44-53-520(b)(1) and (4). The statute does not have a provision for any type of pre-seizure or post-seizure hearing to determine if probable cause exists.  For a seizure under subsection (b)(1) and (4), the law does not provide for any judicial review or judicial authorization prior to or subsequent to the seizure.

There is no post-seizure hearing, only a requirement that the government file a lawsuit that will not be heard in court for months or years after it is filed. In many cases, citizens are forced to file their own lawsuit against the government to get their property back:

In practice, many seizures under S.C.’s forfeiture laws are not followed up by the filing of a forfeiture action, leaving many defendants with the choice of retaining an attorney to file a civil action against the state or simply allowing law enforcement to keep their money or property.

Because the statute does not require a pre-seizure or post-seizure hearing, S.C. Code § 44-53-520 does not comply with the due process clause of Article I, Section 3 of the Constitution of the State of South Carolina or the Fifth and Fourteenth Amendments of the Constitution of the United States of America.

No court hears evidence from law enforcement and there is not even a probable cause determination until long after the property has been seized if there is one at all.

Unconstitutional Incentivization

Most importantly, SC’s forfeiture statutes are unconstitutional because they incentivize forfeiture officials (law enforcement and solicitor’s offices) to seek out and prosecute forfeitures.

If the problem is that law enforcement is 1) aggressively looking for money to steal from motorists, and 2) taking money from motorists regardless of the severity of the crime or even when there is no crime, then this is the answer to why:

Because forfeiture programs in South Carolina are self-funding, they violate due process in that they create an institutional incentive for forfeiture program officials to vigorously pursue forfeitures even where there is no basis for a forfeiture and when leniency would be more appropriate. See Tumey v. Ohio, 273 U.S. 510 (1927).

Most of the money from forfeitures goes directly into a bank account held by the seizing agency, while some of it goes directly into a bank account held by the solicitor’s office. Control of how the money is spent is given exclusively to the seizing agency and solicitor’s offices with no oversight.

The very existence of forfeiture programs in SC depends on the amount of money they bring in. Discretionary and recurring expenses are determined by the agency that seized the money and the solicitor’s office who received their cut of the proceeds:

Furthermore, the very existence of the forfeiture programs depends on the maintenance of income generated by the programs. The budgets for forfeiture programs and the expenditures of individual agencies who benefit financially are necessarily tied to the amount of revenue generated by the programs. Consequently, forfeiture officials, including law enforcement officers, assistant solicitors, and outside counsel retained to prosecute forfeiture actions, are affected by the desire to generate as much money as possible though the forfeiture programs.

Forfeiture programs in South Carolina have an unconstitutional incentive to prosecute forfeiture cases because, in practice, these programs set their own budget and can spend forfeiture funds in any amount and on any items that they choose, including recurring expenses, and without any meaningful oversight. “Thus, there is a ‘realistic possibility’ that forfeiture officials’ judgment ‘will be distorted by the prospect of institutional gain’ — the more revenues they raise, the more revenues they can spend.” Harjo v. City of Albuquerque, 326 F.Supp.3d 1145, 1151 (D. N.M., 2018), citing Marshall v. Jerrico, Inc., 446 U.S. 238, 251, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980).

When the proceeds from forfeitures are used to pay the salaries of government employees who seize the money and who file lawsuits to keep the money, those employees’ jobs depend on whether their agency seized enough money or property that year to cover the overhead…

The Court listed facts that show an unconstitutional incentive to prosecute forfeiture cases in SC:

• Forfeiture revenues in each agency are directed to a designated special revenue fund;
• These funds are used to pay expenses directly associated with the program;
• These funds are used to pay for discretionary items that would otherwise be unavailable to law enforcement agencies;
• The funds are used to pay for recurring expenses, creating a secondary budget within each agency that is not subject to legislative approval and that results in agency dependence on forfeiture funds to continue paying those expenses;
• The existence of forfeiture programs in each agency depends on the revenue generated by forfeitures;
• Forfeiture revenue is used to justify the salaries of forfeiture officials;
• Declines in forfeiture revenue may require the elimination of positions of forfeiture officials;
• Declines in forfeiture revenue would require the elimination of significant discretionary spending by each agency involved; and
• In practice, officials involved in the forfeiture programs control how forfeiture income is budgeted and spent with little or no oversight from the legislature.

What happens next?

The state will almost certainly appeal this decision, and the SC Supreme Court will need to weigh in. The SC legislature should also take notice and amend SC’s forfeiture laws to protect our citizens who are bearing the brunt of SC law enforcement officers “fishing for dollars” on our state’s highways…

Civil Asset Forfeiture Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.