Sidebar: South Carolina High Court Weighs Forfeiture and the Constitution

The South Carolina Supreme Court could soon sound the death knell for civil forfeiture in the state. Currently pending before the court is the government’s appeal 1 from a trial court decision finding every core part of South Carolina’s forfeiture system unconstitutional.

Most notably, the trial court judge decried the large financial stake in forfeiture that South Carolina law gives police and prosecutors. Under state law, police can keep up to 75% of forfeiture proceeds, with another 20% going to prosecutors. (The remaining 5% goes to the state’s general fund.) 2 In addition, the law earmarks the first $1,000 of any cash forfeiture for the agency that seized it. 3 And law enforcement  can spend these proceeds with little oversight, maintaining discretionary accounts they can use for all manner of one-off purchases that would not otherwise be approved in their budgets. This, the judge held, violates the U.S. Constitution’s guarantee of due process because it “create[s] an institutional incentive for forfeiture program officials to vigorously pursue forfeitures even where there is no basis for a forfeiture.” 4

The judge also criticized the law’s requirement that owners prove their innocence and the lack of judicial authorization before or judicial review after a seizure, holding that these features, too, violate due process. 5 Finally, the judge held that, in allowing law enforcement “to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed,” South Carolina law violates the Eighth Amendment’s Excessive Fines Clause, recently applied to the states in Timbs v. Indiana 6  (see “Curbing ‘Excessive’ Forfeitures”).

The decision followed in the wake of a series of explosive reports on civil forfeiture in South Carolina that rocked the state. Investigative journalists with The Greenville News and other local outlets teamed up to publish exposés detailing the many injustices of the state’s civil forfeiture practices. 7 Their “TAKEN” series revealed that, over three years, South Carolina police seized at least $17 million from people through civil forfeiture, with a majority of the funds going back to the police departments. 8 More than half of cash seizures were of less than $1,000, and a third were of less than $500. 9 All of that money very likely went directly to the police departments that seized it. 10

The series also revealed that in 75% of South Carolina’s civil forfeiture cases, the government kept all the cash or goods seized, with 19% of cases ending in a settlement or partial return of property. In just 6% of cases did owners get their property back. 11 And in many cases, no one was ever charged, let alone convicted of a crime: Digging through thousands of case files, the “TAKEN” journalists found that in about 20% of cases, no one was charged with a crime, and in another 20%, criminal charges were filed but the defendant was not convicted. 12

Forfeitures have ground to a halt in the two counties affected by the trial court’s order. The counties’ prosecutor has even advised police departments not to seize large items like vehicles due to the uncertainty and difficulty of storing such items while cases are pending. Meanwhile, it is business as usual in the rest of the state, leading the prosecutor to complain the two counties are “being treated differently than everybody else in the state.” 13 But that will change once the Supreme Court renders an opinion.

The South Carolina Supreme Court has the opportunity to dramatically curtail or even end civil forfeiture. Should it uphold the trial court’s decision and deem the state’s civil forfeiture laws unconstitutional, it will strike a blow for due process that would resonate throughout South Carolina and beyond.