South Carolina Supreme Court Says Only Legislature Can Fix Injustice of Civil Forfeiture

Today, in a stunning decision, the South Carolina Supreme Court upheld the state’s civil forfeiture laws, which give police and prosecutors broad powers to seize and keep innocent people’s property without charging or convicting them of a crime. Despite a long list of well-documented abuses—including many outlined in the award-winning TAKEN series by the Greenville News—the court held that its hands are tied and reform must come from the legislature. 

In coming to its conclusion, the majority wrote that while it “acknowledge[s] some courts and many commentators have criticized the fairness of civil asset forfeiture laws, specifically addressing burden shifting and the potential for an innocent owner to lose his property,” the court is not “called upon to decide whether a change in the law would be wise,” and “cannot encroach upon the General Assembly’s constitutional exercise of legislative power.”

The majority noted, however, that, “if the General Assembly believes our state’s civil asset forfeiture laws should be amended to address the potential for abuse or be updated to align more closely with federal law, it may do so.”

“Today’s decision is extraordinarily disappointing,” said Institute for Justice Senior Attorney Robert Frommer. “Civil forfeiture is one of the greatest threats to South Carolinians’ property and constitutional rights, yet the court ruled that it’s up to the legislature to protect those rights. But the courts are the bulwark of our liberties, and we are evaluating an appeal to the U.S. Supreme Court regarding the important federal constitutional issues at stake.”     

Disagreeing with his colleagues and citing civil forfeiture’s “illusion of due process,” Chief Justice Donald Beatty wrote a vigorous dissent, observing that “the majority clings to precedent regarding an ancient legal fiction, despite its misgivings, because this is the way things have always been, and then it insulates the fiction from further scrutiny behind an unassailable presumption of constitutionality.”

Beatty’s dissent continues: “I agree with the circuit court that the current statutory scheme places an undue burden on property owners, many of whom are never charged with a crime, to prove they are not guilty of any wrongdoing in order to reclaim their property.”

“Regardless of what happens in the courts, the Institute for Justice, along with a broad and bipartisan group of advocates, stand ready to work with legislators to fix South Carolina’s flawed forfeiture process once and for all,” said Institute for Justice Senior Legislative Counsel Lee McGrath.