by Monica Bergeron, Senior Associate
I. An Introduction to Civil Asset Forfeiture
Tonya Smith and her husband were casino-hopping in West Virginia when the police pulled them over for illegal use of a lane. The officers searched the car for drugs, but finding none, seized $10,478 in cash and gift cards that the couple had with them—without charging either of them with a crime. In another forfeiture case, Isiah Kinloch had just called 911 after a man broke into his home and assaulted him. When the police arrived, they searched his apartment and found one ounce of marijuana and $1,800 in cash. They kept the cash. In both of these cases, law enforcement was able to seize private property under the guise of civil asset forfeiture, the infamous practice “so contrary to a basic sense of justice and fairness” that it is often referred to as “legalized theft.”
Civil asset forfeiture allows a state to seize, sell, and retain part of the proceeds of private property simply based on the assumption that the property was either connected to, or the product of, criminal activity. Unlike criminal asset forfeiture proceedings that occur against an individual after a conviction, civil asset forfeiture proceedings are against the property itself, in rem, regardless of whether the State ever convicted the owner of the alleged criminal activity. Civil asset forfeiture therefore operates on the legal fiction that “the property itself is guilty.” Experts and commentators criticize civil asset forfeiture on many grounds, but primarily because of the high potential for, and evidence of, abuse. In most of the 47 states with civil asset forfeiture, the profits from the forfeited property go directly into the pockets of law enforcement agencies such as the police, the prosecutors, and the criminal court systems. Proponents of the practice argue that it targets career criminals, depriving them of their illegally acquired profits. Studies, however, show that the practice does little to take the bite out of serious crime and disproportionately targets minorities and the poor.
Although many state legislatures have succumbed to bipartisan public pressure and adopted civil asset forfeiture reform, in some states, such as Louisiana, the archaic practice lives on, “like a zombie with an affinity for pickpocketing.” In 2019, criminal justice advocates hoped that civil asset forfeiture would finally meet its end with the Supreme Court’s decision in Timbs v Indiana but were widely disappointed when the Supreme Court instead ruled on the much narrower issue of incorporation. Now, a little over a year after Timbs, it seems as though the case’s impact may be just beginning, and state legislatures like Louisiana’s may finally get the push they need toward reform.
II. Louisiana’s Laws Demonstrate the Need for Reform
Unsurprisingly, Louisiana’s civil asset forfeiture laws, also known as the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (“Forfeiture Act”) are largely indicative of many of the incidental evils that accompany the practice. The Forfeiture Act allows for the forfeiture of “all property” that is “used or intended to be used in any manner to facilitate” a controlled substance violation as well as the “proceeds of any [such] conduct.” Law enforcement officers only need probable cause to seize the property without a warrant or other approval, and if the property owner chooses to contest the forfeiture, the State need only prove its case by a preponderance of the evidence—significantly lower than the “beyond a reasonable doubt standard” needed to convict. Contesting the seizure, however, is difficult and costly. As forfeiture proceedings are technically “civil,” there is no right to an attorney. Property owners, therefore, frequently choose not to pursue recourse because the cost of the attorney is often more expensive than the seized property. Further, if the property owner does indeed pursue litigation, he has the arduous burden of proving all six grounds for exemption listed in Louisiana Revised Statutes § 40:2605, including that “he is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not have reasonably known that the alleged criminal conduct was likely to occur.” A cursory look at the defenses in § 40:2605 may suggest that actual innocence would exonerate the property owner of the forfeiture. To the contrary, however, an acquittal or dismissal of the related criminal charge is not a defense.
As in most states with civil asset forfeiture, an extreme conflict of interest is built into the system, with Louisiana law enforcement retaining 60% of the forfeiture revenue, 20% going to the criminal court fund, and 20% to the district attorney’s office. In Louisiana, the only stipulation for the allocation of seizure profits is that they be utilized “for drug law enforcement,” and similarly broad discretion in other states has prompted law enforcement officials to describe the funds as “pennies from heaven” and “a gold mine.” Given the incentive for law enforcement to seize property and the low burden on the government to prove its case, the law also creates a particular incentive to seize cash, regardless of whether it is the product of criminal activity. In fact, between 2000 and 2014, proceeds from civil forfeiture in Louisiana totaled at $99 million dollars, with 88% of that sum consisting of cash forfeitures. Despite the obvious need for reform, the Louisiana Legislature has not yet stepped up to the task, and the current law has withstood constitutional scrutiny.
Louisiana’s civil forfeiture law was last challenged in 1996 in State v. Clark, where the claimants alleged, in part, that the Forfeiture Act’s proof procedures violated due process and the 20% allocation of funds to the criminal court fund deprived litigants of an impartial tribunal. The Louisiana Third Circuit Court of Appeal rejected all arguments. In its reasoning, the Third Circuit noted that the Forfeiture Act was modeled off of the federal act, and that the court could “perceive no trend” in the direction of finding the burden shifting scheme unconstitutional “in the latest expression of the [United States] Supreme Court on the subject of forfeiture.” In the Pelican Institute’s Report, Louisiana’s Not So Civil Asset Forfeiture Laws, the writers predict that this statement by the Third Circuit might indicate that the national shift toward reform and Supreme Court cases that are critical of the practice, such as Timbs, may stand to influence a future Louisiana court’s holding.
III. Timbs v. Indiana
The United States Supreme Court case, Timbs v. Indiana, originated in 2013 when Tyson Timbs was arrested after selling heroin to an undercover officer in Indiana. At the time of his arrest, the police seized a $42,000 Land Rover SUV that Timbs had purchased with the money from his father’s life insurance policy. The district court initially declined Indiana’s request for forfeiture of the vehicle, finding that because the value of the vehicle was more than four times the maximum fine that could be associated with Timbs’s criminal charge, the forfeiture would violate the Eighth Amendment’s Excessive Fines Clause. The case went up to the Indiana Supreme Court, which held that the Eighth Amendment’s Excessive Fines Clause did not constrain state action and thus could not be used to challenge the forfeiture of Timbs’s vehicle.
When the United States Supreme Court agreed to hear the case, advocates of civil forfeiture reform or abolition had hoped that the Court would find that the civil forfeiture law itself was a violation of the Eighth Amendment. The Court, however, instead addressed the much narrower question of whether the Excessive Fines Clause was incorporated into the Fourteenth Amendment and therefore enforceable against the states. Although the Court unanimously answered in the affirmative, critics of civil asset forfeiture were left wondering whether the decision would leave any mark at all. Concerns that the decision would be immaterial were clearly justified. During oral arguments for Timbs, Justice Kagan even remarked that, given the existing difficulty in proving an Eighth Amendment disproportionality claim, “we could incorporate this tomorrow and it would have no effect on anybody.” Making matters worse, the Court’s opinion included none of the details that would possibly make the opinion worthwhile, such as a test for determining whether a fine is “excessive,” an explanation for what constitutes a “fine,” or any indication as to how the opinion would alter the civil forfeiture landscape in the 50 states that already have excessive fines clauses built into their state constitutions.
IV. One Year After Timbs and a Glimpse of Light on the Horizon
Now, approximately one year since Timbs, the outlook may not be as grim as initially forecasted. The first promising sign was the actual resolution of the Timbs case. When the case was remanded back to the Indiana Supreme Court, the court produced a new proportionality analysis by which lower courts are to measure the excessiveness of civil forfeitures. Under Indiana’s new test, an “in rem fine is excessive if (1) the property was not an instrumentality of the underlying crimes, or (2) the property was an instrumentality, but the harshness of the punishment would be grossly disproportional to the gravity of the underlying offenses and the owner’s culpability for the property’s misuse.” Of course, as aptly identified in the dissent, the lack of a standard as to what is “disproportionate” makes the ultimate determination subjective and leaves a lot of discretion to the lower courts. Yet some scholars remain optimistic and believe that the Indiana Supreme Court’s new rule will create a “new robust standard that should shield Hoosiers from excessive fines.” Regardless, it seems as though Timbs, along with the Indiana Supreme Court’s response, have at least created a standard against which courts can easily reverse some of the more egregious civil forfeiture cases.
The second and far more promising sign came from South Carolina. In August of 2019, in the case of Jimmy Richardson, II, versus Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars U.S. Currency, the Fifteenth Judicial Circuit Court of Common Pleas held that South Carolina’s forfeiture statutory regime was itself violative of the Excessive Fines Clause of the Eighth Amendment and the South Carolina Constitution. The Richardson court also found that South Carolina’s civil forfeiture laws violated due process under the Fifth and Fourteenth Amendments because they placed the burden on the property owner to prove innocence, incentivized officials to prosecute forfeiture actions, and failed to mandate judicial review or authorization prior to seizure. Specifically with respect to the Eighth Amendment, the South Carolina court, citing Timbs, found the statute unconstitutional in that it permitted the government to seize unlimited amounts of cash and property without regard to the proportionality of the crime committed. The court emphasized that South Carolina law allows the government to seize property on a mere determination of probable cause, even where there is no conviction or proof that a crime has been committed. Unsurprisingly, the petitioner, the Fifteenth Circuit Solicitor, has appealed the ruling to the South Carolina Supreme Court, which will soon rule on whether the State’s civil forfeiture laws are per se unconstitutional.
Although the South Carolina Supreme Court’s declaration that the State’s forfeiture laws are unconstitutional would undoubtedly be significant—particularly for other states like Louisiana with similar forfeiture laws on the books—the South Carolina Supreme Court’s ruling may not actually be necessary to rid South Carolina of the archaic practice. Like in many other states, the anticipation for the United States Supreme Court’s ruling in Timbs sparked deeper investigations into South Carolina’s own civil asset forfeiture regime. In the spring of 2019, a Greenville News Series called “TAKEN” exposed the injustices that South Carolina’s civil forfeiture laws produced and the massive incentives for law enforcement to seize cash from innocent owners. The South Carolina Legislature is now entering the 2020 Legislative Session with a bill that would abolish civil asset forfeiture and replace it with criminal forfeiture after a guilty verdict. The Richardson case herefore shows two things: (1) that at least some courts are using Timbs as an excuse to look at their state forfeiture laws with greater scrutiny; and (2) that Timbs’s greatest effect may not be the language of the opinion, but rather the renewed effort to bring civil asset forfeiture to the forefront of the political discussion.
V. What Does It Mean for Louisiana?
Although Timbs was not the “nail in the coffin” of civil forfeiture, it does at least create a spark of hope for reform in states like Louisiana where reform has remained foreign. First, Timbs will hopefully prompt courts to look at forfeiture cases critically and decline forfeiture when it is obviously excessive. Second, Richardson is a case to which the Louisiana Legislature would be wise to pay attention. South Carolina’s civil asset forfeiture laws are similar to Louisiana’s, and if the South Carolina Supreme Court upholds the Richardson decision, the case may at least act as persuasive authority for a constitutional attack of Louisiana’s laws in light of Timbs. Additionally, the proceeds from forfeitures in Louisiana are allocated similarly to those in South Carolina. If the South Carolina law is struck down, advocates of reform in Louisiana may have incentive to bring a similar due process challenge alleging that Louisiana’s forfeiture scheme creates an unconstitutional incentive for forfeiture officials.
If Timbs cannot bring reform to Louisiana through the courts, perhaps it can incentivize reform through the political process, as past civil asset reform campaigns have proven impactful. After the Institute for Justice enacted its “End Forfeiture” campaign in 2014, which received widespread media attention, 34 states and the District of Columbia reformed their civil asset forfeiture laws, and three states—North Carolina, New Mexico, and Nebraska—abolished civil forfeiture entirely. Now, it looks as though Timbs may bring a second wave of reform to the remaining 13 states. Only three months after the Timbs decision came down, Michigan passed its own reform requiring a conviction before forfeiture unless the seized property exceeds $50,000. This year, New Jersey is attempting to push a civil asset forfeiture reform bill that would require law enforcement to publish the identity of the property they seize and the reasons for seizure, and, most importantly, would require a criminal conviction for forfeitures over $1,000 in cash or $10,000 in property. The Georgia Legislature is also considering a bill that would stay all forfeiture proceedings until the conclusion of any related criminal proceeding and would prohibit forfeiture in cases where the criminal proceeding results in acquittal or dismissal. Therefore, if Timbs fails to spawn a legitimate constitutional challenge, it may at least serve as a warning to the Louisiana Legislature that renewed momentum for reform is growing and that change in Louisiana is long overdue.
 Deanna Paul, Police Seized $10,000 of a Couple’s Cash. They Couldn’t Get It Back—Until They Went Public, Wash. Post (Aug. 31, 2018), https://www.washingtonpost.com/nation/2018/09/01/police-civil%20forfeiture%20seized-couples-cash-they-couldnt-get-it-back-until-they-went-public/.
 Anne Lee, Nathaniel Cary, & Mike Ellis, TAKEN: How Police Departments Make Millions by Seizing Property, Greenville News (Jan. 17, 2020), https://www.greenvilleonline.com/in-depth/news/taken/2019/01/27/civil-forfeiture-south-carolina-police-property-seizures-taken-exclusive-investigation/2457838002/ [https://perma.cc/B8EM-EK5Q].
 Radley Balko, Civil Asset Forfeiture Doesn’t Discourage Drug Use or Help Police Solve Crimes, Wash. Post (June 11, 2019), https://www.washingtonpost.com/opinions/2019/06/11/study-civil-asset-forfeiture-doesnt-discourage-drug-use-or-help-police-solve-crimes/ [https://perma.cc/7QNK-JUWW].
 See Why Civil Asset Forfeiture Is Legalized Theft, Leadership Conf. on Civ. & Hum. Rts. (July 23, 2015), https://civilrights.org/resource/why-civil-asset-forfeiture-is-legalized-theft/ [https://perma.cc/4Q94-3AT9]; Paul, supra note 1; Lee, supra note 3.
 Balko, supra note 6.
 Id; Louisiana’s Not So Civil Asset Forfeiture Laws, Pelican Inst. for Pub. Pol’y & Right on Crime 4 (2019).
 Balko, supra note 6. The practice has thus also gained attention for some of the outlandish case names it produces, such as State v. 2002 Chevrolet Trial Blazer and United States v. Approximately 64,695 Pounds of Shark Fins. Adam Crepelle, Guest Column: Civil Law—But Not-so-Civil Forfeiture, NOLA (Jan. 24, 2017), https://www.nola.com/opinions/article_0c957451-61f4-5b6d-938b-4def47b44fdf.html [https://perma.cc/WN5U-3GST].
 Dick M. Carpenter, II, et al., Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 2 (2d. Ed. 2015).
 North Carolina, New Mexico, and Nebraska have abolished civil asset forfeiture entirely, and forfeiture takes place solely within criminal proceedings. Int. for Just., Civil Forfeiture Reforms on the State Level, https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/ [https://perma.cc/5TKA-ZUFC] (last modified Jan. 1, 2020).
 Carpenter et al., supra note 11, at 11.
 Balko, supra note 6.
 Robert Gebelhoff, Why Civil Asset Forfeiture Simply Won’t Die, Wash. Post (July 25, 2017), https://www.washingtonpost.com/opinions/why-civil-asset-forfeiture-simply-wont-die/2017/07/25/f5c0c4de-70ba-11e7-9eac-d56bd5568db8_story.html [https://perma.cc/3ZJA-39AL].
 See Emma Andersson, The Supreme Court Didn’t Put the Nail in Civil Asset Forfeiture’s Coffin, ACLU (March 15, 2019), https://www.aclu.org/blog/criminal-law-reform/reforming-police/supreme-court-didnt-put-nail-civil-asset-forfeitures [https://perma.cc/G5NA-2JUF]; Timbs v. Indiana, 139 S. Ct. 682 (2019). “Incorporation” refers to the Supreme Court’s determination as to whether a right found in the Bill of Rights is incorporated into the Fourteenth Amendment and therefore applies with equal force to the states. See Timbs, 139 S. Ct. at 683, 686. A right is incorporated if the Supreme Court finds that it is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.” See id. at 687.
 See generally Steve Bruss, TAKEN Investigation Led to Action in 2019, Greenville News (Dec. 23, 2019), https://www.greenvilleonline.com/story/news/2019/12/23/taken-investigation-started-national-debate-civil-asset-forfeiture-greenville-news-sc/2710573001/ [https://perma.cc/4FPF-MS4Y].
 La. Rev. Stat. § 40:2622 (2019).
 See Carpenter, supra note 11, at 82.
 La. Rev. Stat. § 40:2604.
 La. Rev. Stat. § 40:2612; Louisiana’s Not So Civil Asset Forfeiture Laws, supra note 9 at 5.
 See generally id.
 Article 1 § 4 of the Louisiana Constitution states that forfeiture cases are within the context of property law and not criminal law. State v. Clark, 670 So. 2d 493, 500 (La. Ct. App. 3d Cir. 1996) (finding that “[t]he question of whether forfeiture in Louisiana is civil or criminal is no longer left to statutory or jurisprudential construction; that it is essentially civil (as a limitation on the right to property) is now of constitutional stature, and it is subject to the procedural rules governing civil matters.”). See Louisiana’s Not So Civil Asset Forfeiture Laws, supra note 9, at 5.
 See Louisiana’s Not So Civil Asset Forfeiture Laws, supra note 9, at 8.
 La. Rev. Stat. § 40:2605. The owner must also prove that he did not stand to benefit from the criminal transaction, that he did not jointly own the property used for transportation, that he did not hold the property as an agent for another, that no person whose conduct gave rise to the forfeiture had the authority to convey the property to a bona fide purchaser, and that the owner acquired interest in the property as a bona fide purchaser or after the completion of the alleged criminal conduct. Id.
 La. Rev. Stat. § 40:2605.
 See generally La. Rev. Stat. § 40:2605.
 La. Rev. Stat. § 40:2611(J). For example, in State v. U.S. Currency $1,330.00, a police officer pulled over David Watts for speeding. 772 So. 2d 882, 883 (La. Ct. App. 4th Cir. 2000). After searching Watts’s car, the officer found a bag of cocaine and $1,330.00 in cash. Id. The officer successfully seized and forfeited Watts’s cash, as well as his Corvette. Id. He argued that the amount of cocaine and packaging indicated that Watts was in the business of trafficking illegal drugs, that Watts’s low income demonstrated that he must have purchased the car and received the cash with the proceeds of the illegal drug sales, and that the car was used to facilitate his drug distribution. Id. When Watts’s criminal case was dismissed, the judge also moved to vacate the judgment granting forfeiture. Id. The Fourth Circuit found the dismissal of the forfeiture charges was improper and reinstated the forfeiture. Id. at 883–84.
 La. Rev. Stat. §§ 40:2616(B)(3)(a)–(c).
 La. Rev. Stat. § 40: 2616(B)(3)(a).
 Carpenter, supra note 11, at 15.
 See Louisiana’s Not So Civil Asset Forfeiture Laws, supra note 9, at 9; Carpenter, supra note 11, at 82.
 Carpenter, supra note 11, at 15.
 State v. Clark, 670 So. 2d 493 (La. Ct. App. 3d Cir. 1996).
 Id. at 496.
 Id. at 497.
 Louisiana’s Not So Civil Asset Forfeiture Laws, supra note 9, at 14.
 Timbs v. Indiana, 139 S. Ct. 682, 683 (2019).
 Id. at 686.
 See id. at 691.
 See id.
 See Molly Davis, One Supreme Court Victory Hasn’t Solved Civil Asset Forfeiture Fight, Wash. Examiner (Feb. 23, 2019), https://www.washingtonexaminer.com/opinion/one-supreme-court-victory-hasnt-solved-the-civil-asset-forfeiture-fight [https://perma.cc/MPR4-ZJ4R].
 Andersson, supra note 17.
 Lisa Soronen, Timbs v. Indiana Civil Forfeiture Case Won’t Have Much Impact, NCSL (April 10, 2019), https://www.ncsl.org/blog/2019/04/10/timbs-vs-indiana-civil-forfeiture-case-wont-have-much-impact.aspx [https://perma.cc/D9T6-EDAW].
 See State v. Timbs, 134 N.E.3d 12, 39–40 (Ind. 2019).
 Timbs, 134 N.E.3d at 39–40.
 Id. at 40–41 (Slaughter, J., dissenting).
 Nick Sibilla, Indiana Supreme Court Slams “Oppressive” Civil Forfeiture Laws in Seized Land Rover Case, Forbes (Nov. 1, 2019), https://www.forbes.com/sites/nicksibilla/2019/11/01/indiana-supreme-court-slams-oppressive-civil-forfeiture-laws-in-seized-land-rover-case/#9bb525670eec [https://perma.cc/XC6S-R564].
 See Tejada v. 2015 Cadillac Escalade VIN No: 1GYS4BKJ5FR157228, 267 So. 3d 1032, 1037 (Fla. Dist. Ct. App. 2019) (remanding back to district court to determine whether the forfeiture of defendant’s Escalade after defendant pled guilty to registering her vehicle in a false name was excessive in light of Timbs v. Indiana).
 Order, Jimmy Richardson, II, Solicitor for the Fifteenth Judicial Circuit, on Behalf of the 15th Circuit Drug Enforcement Unit v. Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars; No. 2017-CP-26-017411 (15th Cir. Aug. 28, 2019).
 Nathaniel Cary, Statewide Precedent Could Be Set in Forfeiture Case to Be Appealed to SC Supreme Court, Greenville News (Jan. 30, 2020), https://www.greenvilleonline.com/story/news/2020/01/30/myrtle-beach-civil-forfeiture-case-appealed-state-supreme-court/4587691002/ [https://perma.cc/3U9L-D5DR].
 See Julie Calhoun, SC Police Agencies Report Thousands in Civil Forfeiture Money; Lawmakers Consider Changes to Statute, Count on News2 (Jan. 31, 2020), https://www.counton2.com/news/south-carolina-news/sc-police-agencies-report-thousands-in-civil-forfeiture-money-lawmakers-consider-changes-to-statute/ [https://perma.cc/C8HH-DVVD].
 See generally Bruss, supra note 18.
 See id.
 See Calhoun, supra note 60.
 See generally id; Cary, supra note 59.
 See Andersson, supra note 17; Timbs v. Indiana, 139 S. Ct. 682 (2019).
 See generally Timbs, 134 N.E.3d 12 (Ind. 2019).
 See generally Order, Jimmy Richardson, II, Solicitor for the Fifteenth Judicial Circuit, on Behalf of the 15th Circuit Drug Enforcement Unit v. Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars; No. 2017-CP-26-017411 (15th Cir. Aug. 28, 2019); La. Rev. Stat. § 40:2601–16.
 See generally id.
 See generally id. In State v. Clark, the petitioners argued that the 20% allocation to the criminal court fund created an unconstitutional incentive for the judiciary. 670 So. 2d 493 (La. Ct. App. 3d Cir. 1996). The South Carolina Circuit Court, however, found that the funds created an impermissible conflict of interest as to the funds allocated to law enforcement. See Order, Jimmy Richardson, II, Solicitor for the Fifteenth Judicial Circuit, on Behalf of the 15th Circuit Drug Enforcement Unit v. Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars; No. 2017-CP-26-017411 (15th Cir. Aug. 28, 2019).
 See generally Civil Forfeiture Reforms on the State Level, Int. for Just., https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/ [https://perma.cc/6AAV-234M] (last modified Jan. 1, 2020).
 Gretchen Whitmer Signs Bill to Limit Asset Forfeiture in Drug Cases, Detroit Free Press (May 9, 2019), https://www.freep.com/story/news/politics/2019/05/09/gretchen-whitmer-signs-bills-limit-asset-forfeiture-drug-cases/1155329001/ [https://perma.cc/2JJP-U7L3].
 C.J. Ciaramella, New Jersey Passes Civil Asset Forfeiture Reforms, Reason Foundation (Jan. 14, 2020), https://reason.com/2020/01/14/new-jersey-passes-civil-asset-forfeiture-reforms/ [https://perma.cc/CCP7-B5Y3].
 Jessica Szilagyi, Bill Would Halt Civil Forfeiture Until Conviction in Georgia, AllOnGeorgia (March 4, 2020), https://allongeorgia.com/georgia-state-politics/bill-would-halt-civil-forfeiture-until-conviction-in-georgia/ [https://perma.cc/9DFA-UWVG].