Civil asset forfeiture in South Carolina is unconstitutional, circuit court judge rules

A South Carolina circuit court judge in Horry County has ruled the state’s civil asset forfeiture law unconstitutional, in violation of the U.S. Constitution’s Fourth, Fifth and 14th amendments.

While the decision by 15th Circuit Court Judge Steven H. John doesn’t set precedent beyond his courtroom, it could set the table for a state appellate court to determine whether South Carolina needs to enact reforms to its law.

Earlier this year The Greenville News published coverage from a two-year investigation into civil asset forfeiture in South Carolina. The series, called TAKEN, addressed questions that were raised by legislators, attorneys and citizens. Journalists with The News, the Anderson Independent Mail and the USA Today Network examined more than 3,200 cases in South Carolina from 2014 to 2016 and found:

► Agencies in South Carolina seized more than $17 million from people over the course of three years. The bulk of that money ended up in the hands of law enforcement to pay for drug-crime fighting.

► Nearly 800 times when police seized money or property, no related criminal charge was filed. In another 800 cases, someone was charged with a crime but not convicted. As part of recent reforms, 15 states have made forfeiture dependent on a criminal conviction; South Carolina has not, though efforts to reform the practice are ongoing in the state Legislature.

► About 65% of the cases involved black men though black men make up just 13% of the state’s population.

► Prosecutors have up to two years after police seize money to file a civil court case justifying the seizure. On average, when a person petitions to have money or property returned, the case takes 17 months from the time of the seizure to be resolved, regardless of the outcome of any related criminal charges.

John’s written decision found that South Carolina’s forfeiture laws violate both the federal and state constitutional protections against excessive fines by allowing the government to seize unlimited amounts of cash and property that aren’t proportionate to the alleged crime.

“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,” John wrote.

Judge’s ruling followed case of Myrtle Beach man charged with drug offenses
The decision came in a civil forfeiture case of Travis Lee Green on behalf of the 15th Circuit Drug Enforcement Unit. Agents with the DEU made three controlled buys of cocaine from Green and eventually charged him with two counts of distribution of cocaine and one count of trafficking cocaine, records show.

A search warrant executed at Green’s Myrtle Beach home found a backpack with more alleged drugs. Agents found $19,800 in a closet and another $971 on Green when he was arrested.

John found the amount seized by agents to be a violation of the constitutional prohibition on excessive fines.

The decision marked the first time the U.S. Supreme Court’s recent ruling on excessive fines in the case of Timbs vs. Indiana has been applied in the country since the ruling, said Wesley Hottot, the attorney who argued that case before the Supreme Court.

The judge’s ruling signals how he would approach forfeiture cases in his court in the future but doesn’t set precedent across the state, according to Robert Wilcox, dean of the University of South Carolina School of Law. If a party appeals the decision to the state court of appeals, or the state Supreme Court decides to take an appeals case directly, it would set precedent, Wilcox said.

Either way, attorneys across the state could cite the ruling when arguing their own civil forfeiture cases, he said.

Green’s case was filed in 2017, and the judge’s decision was made Aug. 28. The solicitor, Jimmy Richardson, filed a motion to reconsider that was scheduled to be heard Tuesday. A ruling on that motion wasn’t available Tuesday afternoon. Richardson couldn’t be reached for comment Tuesday.

Hottot, an attorney with the Institute for Justice, a law firm that advocates for property rights issues, said he expected that in the coming years the Supreme Court’s excessive fines ruling will be cited often, but this was the first instance he was aware of since the ruling in February.

“The Supreme Court in Timbs recognized that there’s special reason to be concerned about government fines, fees and forfeitures, because unlike all other forms of punishment, the government stands to benefit financially,” Hottot said.

John recognized that a state’s forfeiture statute can be unconstitutional when it has a built-in profit incentive, Hottot said.

“I think what you’re seeing is the beginning of a wave of litigation that tries to tease out what is constitutional and what is not constitutional in light of Timbs,” Hottot said.

But, Hottot said, lawsuits alone won’t correct the systemic problems inherent to forfeiture law that John detailed in a 15-page order. Lawmakers must rework forfeiture laws to remove incentives for police to seize money and property and to base forfeiture on a criminal conviction, Hottot said. Neither of those requirements is currently required under South Carolina law.

In response to the TAKEN investigation and after a legislative push for reform in the spring 2019 session was halted, a bipartisan group of state lawmakers has been meeting in a study committee to draft reforms to South Carolina’s civil forfeiture laws.

That committee is still working out details of the proposal, but issues of separation of power and making forfeitures based on a criminal conviction are key parts of the reform, said Rep. Alan Clemmons, R-Myrtle Beach, who has long been a proponent of forfeiture reform.

The study group plans to propose an amendment to the bill that was discussed in the spring. That amendment would be introduced at the start of the 2020 session, Clemmons said.

“The abuses under the current civil asset forfeiture statute in South Carolina are far and wide,” Clemmons said. “The stories being reported on by your newspaper aren’t an aberration. They are facts that we’ve been seeing quite often across South Carolina and across the U.S.”

What the judge said makes SC’s forfeiture laws unconstitutional
In his order, Judge John ruled that South Carolina’s forfeiture statutes violate state and federal law in four ways:

► The prohibition on excessive fines.

► Due process in that they place the burden on the property owner to prove their innocence.

► Due process by institutionally incentivizing forfeiture officials to prosecute forfeitures.

► Due process because they “do not mandate judicial review or judicial authorization prior to or subsequent to the seizure.”

South Carolina’s forfeiture laws would allow law enforcement to seize millions of dollars from a person even when the maximum fine authorized by law is minimal or when no crime has been committed at all, John wrote.

“This unfettered authorization to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed — indeed, without evidence proving that the individual committed an offence — compels this Court to find that the statutory scheme in unconstitutional and must be invalidated under the federal and state constitutional prohibitions on excessive fines and pursuant to the United States Supreme Court’s decision in Timbs,” John wrote.

The order laid out the reasons why the state’s “forfeiture scheme,” as the judge wrote, provides an unconstitutional incentive to prosecute cases.

► Forfeiture revenues in each agency are directed to a designated special revenue fund, and these funds are used to pay program expenses, for discretionary items that would otherwise by unavailable to the law enforcement agency, and 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 at law enforcement agencies depends on revenue generated by forfeitures.

► Forfeiture revenue is used to justify the salaries of forfeiture officials, and declines in forfeiture revenue may result in the elimination of forfeiture officials’ positions.

► Declines in forfeiture revenue would require the elimination of significant discretionary spending by agencies.

► “In practice, officials involved in the forfeiture programs control how forfeiture income is budgeted and spent with little or no oversight from the legislature.”