Only 50 years too late, the Supreme Court has granted a petition for certiorari to consider whether the asset forfeiture of a $95,000 plane is excessive for transporting beer to a dry village in Alaska. 

In an orders list, the Court granted the petition of Ken Jouppi, a retired 82-year-old Alaskan bush pilot who argues that the seizure of his $95,000 Cessna U206D is an excessive fine under the Eighth Amendment.

Jouppi was convicted of a misdemeanor in 2012 when Alaska state troopers searched his plane before takeoff and discovered that a passenger was attempting to bring several cases of beer to a “dry” village where alcohol is prohibited. (Jouppi was only culpable for a single six-pack of Budweiser that troopers said was in plain sight.)

And for the last 14 years, Jouppi has fought to stop the Alaska state government from taking his Cessna through asset forfeiture, a process which allows police and prosecutors to seize property connected to criminal activity.

For those familiar with the long and sordid history of civil asset forfeiture, it was justified under the simplistic mantra of “taking the profit out of crime,” claimed to only be intended for mobsters and drug kingpins. In its original incantation, the government seized whatever it could get its hands onto of value and shifted the burden of proving that it wasn’t either unlawfully obtained or wasn’t used to facilitate a crime onto the claimant. More often than not, the burden of doing so, both in terms of cost of bonding and litigating, and availability of evidence to prove the negative made it difficult, if not impossible, to challenge.

Over time, the recognition that it was largely a money grab by cops and government resulted in incremental changes to the law. Eventually, the Supreme Court held that a forfeiture was a fine, and was therefore subject to the Excessive Fines clause in the Eighth Amendment to the Constitution. Better decades late than never, but still the ruling left open the test for what constituted an excessive fine.

There is some dispute about whether Jouppi was aware of all 72 cans, or just the one six-pack that was visible. But the Alaska Supreme Court concluded this issue is irrelevant, because courts must heavily defer to the legislature on the issue of what qualifies as a serious enough offense to justify massive forfeitures, and “[i]t is clear to us that the legislature determined that the harm from even a six-pack of beer knowingly imported into a dry village is severe enough to warrant forfeiture of an aircraft.”

If the lege says its forfeitable, then it’s not excessive according to the Alaska Supreme Court, completely missing the point of why there is such a thing as an excessive fines clause. But still, the question of what constitutes excessive remains something of a mystery. The Supremes characterized it as “grossly disproportionate,” which is about as useful a test as the word “excessive” standing alone.

Does it matter that a crime is malum in se or malum prohibitum? If conduct is entirely lawful in one place, does making it a crime make the underlying offense “grave”? If it’s not grave, then why is it a crime at all, sufficient to take away a person’s liberty for a day or a lifetime? Or has the use of criminality to micromanage conduct become so excessive in itself as to render some crimes, perhaps many, so insignificant as to be unworthy of civil asset forfeiture at all?

While Ilya Somin may not have the answer to these question, this case presents an instance of “I know it when I see it.”

I think it is obvious that even the illegal transportation of 72 cans of beer (let alone just six) is nowhere near severe enough an offense to justify forfeiture of a plane worth $95,000. In a previous case, the Supreme indicated that a fine is “excessive” if it is “grossly disproportionate” to the “gravity” of the underlying offense. That’s far from a clear standard, and the Court should flesh it out in greater detail. But if the Jouppi forfeiture is not “grossly disproportionate,” I do not know what is.

The Alaska Supreme Court indulged an attenuated theory of gravity to justify the forfeiture, beyond the mere “the legislature said so.”

There are other problems with the Alaska Supreme Court’s decision. Its reasoning about the severity of the crime here is not premised on any notion that illegal transportation of alcohol is itself a grave offense, but that it indirectly contributes to excessive drinking, which in turns leads to crime and social pathology in rural parts of Alaska, where (as the lower court found) law enforcement has limited resources to deal with it.

If keeping a village dry, a policy concern, for the purpose of preventing Alaskans from drinking to excess, getting drunk and committing other crimes and becoming generally socially unhelpful people, so be it. Efficacy aside, the locals are allowed to keep demon liquor out of their enclave if they decide their fellow citizens are incapable of drinking responsibly.

But then, is it not sufficient that it’s a crime in itself, whether to possess it or, as Ken Jouppi, the retired 82-year-old Alaskan bush pilot who was definitely neither a mobster nor drug kingpin, learned to his regret. Is forfeiting an airplane, or anything for that matter, reasonably necessary or justifiable to keep those Alaskans for getting drunk and behaving poorly?