The Supreme Court is staging a $95,000 photo-op on a bush pilot’s forfeited airplane while refusing to dismantle the civil-forfeiture machine it built. Alaska state troopers seized Kenneth Jouppi’s $95,000 airplane — the aircraft a bush pilot in a state where roads do not reach depends on to make a living — because the plane was used to transport a six-pack of beer. The troopers never filed criminal charges. They initiated a forfeiture proceeding not against the man but against the airplane itself, under Alaska’s civil-forfeiture law, which allows the government to take property it suspects is connected to criminal activity and force the owner to prove the property is innocent. Jouppi was a claimant in a case in which his own airplane was the defendant. The government bore no burden of proving the airplane was the instrument of a crime — only that it was more likely than not connected to one. The burden ran one direction: toward the pilot whose airplane was seized.
The Court granted certiorari in Jouppi v. Alaska, No. 25-246.
The steel-man: the Court took the case to complete the incorporation project Timbs v. Indiana, 586 U.S. 149 (2019), left unfinished. Timbs held unanimously that the Excessive Fines Clause of the Eighth Amendment applies to the states — Justice Ginsburg’s opinion tracing the Clause from the English Bill of Rights of 1689 through colonial-era protections to the ratification of the Bill of Rights in 1791 — but decided nothing about what the Clause requires of state forfeiture statutes. 586 U.S. at 158–63. The opinion was eight pages. It answered one question: does the Clause apply to the states? It left every other question for another day. Lower courts applying the Bajakajian standard have reached incompatible results on materially similar facts. A working-bar attorney aligned with the Court would read the cert grant as an institutional recognition that the lower-court dysfunction demands Supreme Court resolution.
The Court’s own doctrine is the evidence. United States v. Bajakajian, 524 U.S. 321 (1998), established the governing standard at 334: a civil forfeiture violates the Excessive Fines Clause only when “grossly disproportional to the gravity of the offense.” The word “grossly” does the load-bearing work. Justice Thomas’s majority set the standard in the context of a customs-reporting violation — a man who failed to declare $357,144 at an airport, of which the government sought forfeiture of the full amount. 524 U.S. at 326–27. The Court held the forfeiture unconstitutional because the property value exceeded the maximum criminal fine by more than a factor of thirty.
But Bajakajian addressed a criminal defendant — a man who had been charged, tried, and convicted. The standard was calibrated to proportionality between a criminal penalty and the forfeiture imposed on a person the government had already proven guilty. The Court did not address the regime that governs Jouppi: the regime in which no criminal charge is filed, no conviction is obtained, and the owner must prove innocence to recover property the government seized under color of law.
That regime rests on a legal fiction the Court has never required the government to justify: the in rem action against the property itself, in which the property is the defendant and its owner is a claimant intervening to recover something the government already holds. The fiction was inherited from English maritime law, where a vessel could be libeled for customs violations and its owner might be in another jurisdiction entirely. The fiction made procedural sense in eighteenth-century admiralty. It makes no sense when the government seizes a bush pilot’s airplane on an Alaska tarmac and the pilot must go to court to prove his aircraft is innocent of transporting beer.
The Court’s Excessive Fines Clause jurisprudence does not address this architecture. Bajakajian addressed proportionality in a criminal-forfeiture context. Timbs addressed incorporation. Neither addressed the policing-for-profit incentive — the documented pattern in which law-enforcement agencies that seize property retain the proceeds and fund operations from those proceeds. Since 2000, Alaska agencies have generated more than $21 million in equitable-sharing proceeds from the federal departments of Justice and the Treasury, and Alaska does not report how forfeiture funds are spent. The agency that seizes the airplane keeps the proceeds. The incentive structure is not incidental to the doctrine. It is the doctrine’s operational reality.
The Court has never held that a criminal conviction is a prerequisite to civil forfeiture. It has never held that the government must prove by a preponderance or clear-and-convincing evidence that property is connected to a crime before forfeiting it. It has never held that the proceeds cannot be retained by the seizing agency. These are the questions that would fix the machine. The Court agreed to hear a case about the standard of review.
If the Court wanted to fix civil forfeiture, it would hold that the government must convict before it confiscates and disgorge the seized assets from the agencies that took them. It has not held either. It has granted certiorari in Jouppi to consider whether the standard of review should be recalibrated — whether “grossly disproportional” should mean something closer to what the word “grossly” implies.
The Excessive Fines Clause exists because the Framers understood that a government permitted to profit from seizures will seize without limit (see Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266–68 (1989) (tracing the Clause’s origin to the English Bill of Rights and the Framers’ intent to prevent government profiteering through excessive penalties)). A clause designed to prevent the king from fining his subjects into submission does not become less necessary when the constable replaces the king and the fine becomes a “civil forfeiture.” The machine runs on. The troopers keep the airplane. The Court holds a hearing and calls it jurisprudence.