New Jersey Criminal Defense Attorney Blog
Anyone with a narcotics-related case – regardless of how simple or complicated the facts may be – has been in this situation. Defense counsel is able to negotiate an acceptable plea deal with the prosecutor which requires their client to, among other things, forfeit property seized at the time of arrest. The property can be anything that was allegedly connected to the drug-related activities, but frequently includes cash and/or a vehicle. The State obtains the property in one of two ways. First, it can commence a civil forfeiture action with an eye toward obtaining a judgment that eliminates the defendant’s right in or to the property and turns it over to the State. It can also require the defendant to execute a consent judgment at the time of the plea or sentencing. Cash, which the State held in an account pending resolution of the criminal case, then becomes State property.
Vehicles and other items may be sold by the State. Occasionally, if a car is deemed suitable, it may also be outfitted with the necessary equipment and then used by the police for law enforcement activities. I have also had cases where the State allowed my client to “redeem” a vehicle. This required my client to purchase their vehicle back from the State at fair market value. Thus, the client or the vehicle’s owner effectively purchased their car a second time. The fact that the car was financed and had a bank lien on it was irrelevant to any determination of the amount of money sought by the State. As with forfeited cash, the proceeds of any vehicle sale or redemption go the State and, at least according to what we are told, are used to help finance law enforcement activities.
This is an issue of considerable magnitude since it goes directly to budget and funding decisions on every level of government. On February 20, 2019, the United States Supreme Court decided Timbs v. Indiana, No. 17-1091. This decision should have a dramatic effect on forfeiture proceedings that are related to criminal cases.
The defendant, Tyson Timbs, resolved a drug case in Indiana state court with a guilty plea. When he was arrested, the police seized a Land Rover SUV that Timbs purchased for $42,000 with insurance proceeds he received when his father died. The State sought forfeiture of the vehicle, which was allegedly used to transport heroin. The Indiana trial court denied the requested forfeiture because the value of the vehicle was more than four times the maximum fine Timbs could have received in his case. This made the forfeiture grossly disproportionate to the gravity of the underlying offense and, therefore, unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The appellate court affirmed but the Indiana Supreme Court reversed, holding that the excessive fines clause applied only to federal, as opposed to state, action. The question before the United States Supreme Court was whether the clause applied to the States because of the Due Process Clause of the Fourteenth Amendment.
The Court answered this question in the affirmative since safeguarding against the imposition of excessive fines, like safeguarding against cruel and unusual punishment and setting excessive bail, was needed to protect against a State’s abuse of its criminal or law enforcement authority. The Court’s findings and conclusions were based upon a historical analysis of the issue going all the back to the Magna Carta. Against this backdrop, the Court held that protecting against excessive fines was “fundamental to our scheme of ordered liberty”, and was “deeply rooted in this Nation’s history and tradition.” As such, the Due Process Clause made the Excessive Fines Clause applicable to the States.
Until now, civil forfeiture in criminal cases has not typically been challenged by defense attorneys. Indeed, it’s something that has usually been taken for granted. Timbs should result in more challenges to forfeiture when the dollar amount of the property being forfeited is disproportionate to other dollar values that may be assigned to the different elements of the case.
James S. Friedman is a criminal defense attorney centrally based in New Brunswick, New Jersey. Mr. Friedman represents defendants with cases in all state and federal courts in New Jersey and New York City. If you have a criminal case in any court in New Jersey or New York City, call him to learn about your options, and to plan your defense.
