Comment: Courts rule for fairness of fines, civil forfeitures

State justices recently held that a $500 fine can be egregious for some if they are unable to pay.

By Suranjan Sen / For The Herald

Washington state families scored a victory recently when the state Supreme Court held, for the first time, that the government must consider people’s ability to pay when imposing fines and fees.

This landmark decision will protect all Washingtonians — particularly the most vulnerable in society — from crippling penalties. And people can use all the protection they can get, considering the methods available to the government for taking money from people.

One way is through civil forfeiture, a scheme that allows the government to seize and keep assets without charging anyone with wrongdoing. Some people lose vehicles and cash based on mere speculation that their property is linked to criminal activity. Overall, Washington agencies pulled in more than $232 million from civil forfeiture during the 20-year span from 2000 to 2019.

Though not itself a case of civil forfeiture, the recent high court decision will provide a new safeguard for all Washington residents facing punitive governmental demands for property. The case began in 2016, when Steven Long, a general tradesman and a tribal member of Montana’s Flathead Nation, was down on his luck.

The 56-year-old was living in his truck, which contained all his work tools and personal belongings. After parking the vehicle in an out-of-the-way gravel lot owned by Seattle, the city seized the vehicle, forcing Long to sleep outside on the ground. He eventually recovered his truck, but the city required him to pay more than $500 in $50 monthly installments in fines to cover the towing and impound costs.

That amount might not seem egregious, but the demand was devastating for Long. In any given month, he earned between $400 and $700 dollars, thousands less than Seattle’s cost of living.

Many other Washingtonians live in similar circumstances. In King County alone, about 12,000 people are homeless, including 2,000 living out of vehicles. Many more are in precarious financial positions. Making matters worse, these people are among the most likely to face fines for violations that often serve primarily as sources of government revenue.

Imposing fines that destroy people’s lives is not just inhumane, it’s unconstitutional. So Long fought back. He challenged the city’s demands under the Eighth Amendment to the U.S. Constitution, which prohibits the government from demanding excessive fines. My law firm, the Institute for Justice, submitted briefs urging the Washington state Supreme Court to consider Long’s limited financial resources.

The Court did exactly that when it held Aug. 12 that even relatively small property demands can be excessive based on the person’s inability to pay. For Long, $50 a month would, in the Court’s words, “deprive him of his livelihood.” When combined with other factors — including the minimal harm involved in Long’s violation — the Court concluded that the assessment was unconstitutional.

This rebuke of unfair police practices was made possible by the U.S. Supreme Court’s 2019 decision in Timbs v. Indiana. That case, litigated by the Institute for Justice, held for the first time that the “excessive fines” clause of the Eighth Amendment applies to states as well as the federal government. Following that decision, the Indiana Supreme Court held that the state could not use civil forfeiture to seize and permanently keep Tyson Timbs’ $42,000 Land Rover just because he had used it to transport $225 worth of illicit drugs.

The Washington state Supreme Court applied Timbs when it ruled in Long’s favor, and it looked toward a recent Colorado Supreme Court decision holding that the Timbs “excessive fines” inquiry must consider ability to pay. This recognizes a simple truth: What might be an inconvenient demand for one person can be utterly ruinous for another.

When cities craft penalties for offenses — especially for low-level offenses, most likely to be enforced against people with limited means — the goal is to punish, not ruin. The protection announced in this decision extends beyond the context of monetary demands and will apply to any punitive seizure of property—including civil forfeiture.

Ultimately, the most vulnerable in society will not be secure until policymakers end civil forfeiture and other pernicious moneymaking schemes entirely. In the meantime, Long’s victory is a welcome step in the right direction.

Suranjan Sen is a Law and Liberty Fellow at the Institute for Justice in Arlington, Va.

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