Supreme Court Will Consider Excessive Fines Clause Asset Forfeiture Case

In Timbs v. Indiana (2019), the Supreme Court unanimously ruled that the Excessive Fines Clause of the Eighth Amendment is incorporated against state governments. It also ruled that asset forfeitures – confiscation of property that may have been used to facilitate commission of a crime – qualify as fines. But it gave little guidance on what exactly qualifies as “excessive.” This lack of clarity stimulated all sorts of uncertainty and disagreement in lower state and federal courts.

Recently, the Court decided to hear the case of Jouppi v. Alaska. Jouppi is an Alaska “bush pilot,” flying passengers to remote areas. In 2012, Alaska authorities caught him transporting a passenger who had 72 cans of beer with her, to a “dry” village where importation of alcohol is banned. State law criminalizes transportation of alcoholic beverages there.

For this crime, Jouppi was fined $1500 and sentenced to three days in jail. But the state then used its asset forfeiture law to confiscate Jouppi’s plane (worth about $95,000). There is some dispute about whether Jouppi was aware of all 72 cans, or just the one six-pack that was visible. But the Alaska Supreme concluded this issue is irrelevant, because courts must heavily defer to the legislature on the issue of what qualifies as a serious enough offense to justify massive forfeitures, and “[i]t is clear to us that the legislature determined that the harm from even a six-pack of beer knowingly imported into a dry village is severe enough to warrant forfeiture of an aircraft.”

I think it is obvious that even the illegal transportation  of 72 cans of beer (let alone just six) is nowhere near severe enough an offense to justify forfeiture of a plane worth $95,000. In a previous case, the Supreme indicated that a fine is “excessive” if it is “grossly disproportionate” to the “gravity” of the underlying offense. That’s far from a clear standard, and the Court should flesh it out in greater detail. But if the Jouppi forfeiture is not “grossly disproportionate,” I do not know what is.

In addition, the Alaska Supreme Court was wrong to rule that courts must give the legislature broad deference on such issues. That defeats the whole point of the Excessive Fines Clause, which is to limit legislative power. By this logic, the legislature could exempt almost any fine from invalidation so long as it claims the underlying offense is really, really bad. You could, for example, justify the forfeiture of a $1 million  house because the owner used it to store an illegally purchased cigarette. Indeed, that fact pattern isn’t so much worse than what happened in Jouppi!

The Alaska Supreme Court’s reasoning is another example of the tendency of many jurists to defer to the legislature on property rights issues in a way they would never accept when it comes to other constitutional rights. The Kelo “public use”  takings case is a particularly notorious example of this problem.

There are other problems with the Alaska Supreme Court’s decision. It’s reasoning about the severity of the crime here is not premised on any notion that illegal transportation of alcohol is itself a grave offense, but that it indirectly contributes to excessive drinking, which in turns leads to crime and social pathology in rural parts of Alaska, where (as the lower court found) law enforcement has limited resources to deal with it.

This whole chain of reasoning is extremely dubious. The experience of the Prohibition era showed that prohibiting alcohol sales is a poor strategy for combating crime, and indeed actually exacerbates it, by facilitating the rise of organized crime and its associated violence. And if the problem is that Alaska law enforcement has too few resources to deal with crimes arising from alcohol abuse, then it shouldn’t be wasting those scarce resources on the less effective tactic of enforcing prohibition! Instead, have more cops on the beat actually targeting violent crime.

These last few points might be seen as policy considerations, normally left to the legislature. But courts should scrutinize them if – as in this case – they are part of the government’s rationale for arguing that the fine here is not “excessive.” In that event, the accuracy of the state’s claims is relevant to the court’s resolution of the constitutional issue before it.

Jouppi is represented by the Institute for Justice, the libertarian-leaning public interest law firm that also successfully litigated the Timbs case. I am guardedly optimistic they will prevail here, too. If we are lucky, the Court might  in the process establish a clearer and more restrictive standard for what qualifies as an “excessive” fine. But, all too often,  these kinds of predictions aren’t worth much more than what you’re not paying for them!

NOTE: As indicated above, Jouppi is represented by the Institute for Justice. I have longstanding connections with IJ, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case. IJ has an informative website devoted to the Jouppi case here.