by Douglas Ankney
The Supreme Court of the United States (“SCOTUS”) held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment, inclusive of civil in rem forfeiture cases.
After Tyson Timbs pleaded guilty in an Indiana state court to dealing in a controlled substance and conspiracy to commit theft, a private law firm hired by the State filed a civil suit seeking forfeiture of Timbs’ Land Rover on the ground that Timbs used the vehicle to transport heroin.
At the hearing on the forfeiture demand, the trial court found that Timbs had recently purchased the Land Rover for $42,000 with money he received from an insurance policy upon his father’s death. Even though Timbs did use the vehicle to facilitate the violation of a criminal statute, the court denied forfeiture because the $42,000 Timbs paid for the vehicle was more than four times the maximum $10,000 monetary fine assessable to him for his drug conviction. The court determined that forfeiture of the Land Rover would be grossly disproportionate to the gravity of Timbs’ offense, thus, unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed. But the Indiana Supreme Court reversed, holding that the Excessive Fines Clause constrained only federal action and is inapplicable to state impositions. SCOTUS granted certiorari.
The Court explained that in 1791 the Bill of Rights was ratified and applied only to the federal government. But the Constitutional Amendments adopted shortly after the Civil War fundamentally altered our country’s federal system. McDonald v. Chicago, 561 U.S. 742 (2010). Excluding a handful of exceptions, SCOTUS has repeatedly held that the Fourteenth Amendment’s Due Process Clause incorporates the guarantees contained in the Bill of Rights, making them applicable to the States. Id. If a guarantee of the Bill of Rights is “fundamental to our scheme of ordered liberty or deeply rooted in this Nation’s history and tradition,” then it is incorporated by the Fourteenth Amendment. Id. Incorporated guarantees are “enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id.
The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The phrase “nor excessive fines imposed” is the Excessive Fines Clause, and its roots can be traced back to at least the Magna Carta of 1215. The Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989). Despite the Magna Carta, kings used large fines to raise revenue, harass political foes, and indefinitely detain those unable to pay. Id. Later, the English Bill of Rights guaranteed that “excessive bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual punishments inflicted.” This language was echoed in the Colonies, first in the Virginia Declaration of Rights, and then in the Eighth Amendment. And, in 1787, the constitutions of eight states – or 70 percent of the U.S. population – prohibited excessive fines. When the Fourteenth Amendment was ratified in 1868, the constitutions of 35 of the 37 States – over 90 percent of the population – expressly forbade excessive fines. Currently all 50 States have a constitutional provision prohibiting excessive fines.
The protection against excessive fines has been a constant shield throughout Anglo-American history to prevent retaliation against political enemies or to chill their speech, and to prevent governments from using them in lieu of taxes to raise revenue. In short, the Excessive Fines Clause is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald. Consequently, the Fourteenth Amendment incorporates the guarantees of the Excessive Fines Clause. Id.
The Court then observed that Indiana did not meaningfully challenge the case for incorporating the Excessive Fines Clause. Instead, Indiana argued the Clause does not apply to civil in rem (property) forfeitures because such an application of the Clause is neither fundamental nor deeply rooted. But precedent has established that the Clause applies to in rem forfeitures when they are at least partially punitive. Austin v. United States, 509 U.S. 602 (1993). Thus, the Court determined that in order for Indiana to prevail the State must either convince the Court to overrule Austin or to hold that, in light of Austin, the Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted.
The first argument was not available because it was not properly before the Court. The Indiana Supreme Court had held the Clause does not apply to the States at all. Thus, Timbs’ petition seeks review on the question of whether the Clause is incorporated against the States under the Fourteenth Amendment. In opposing review, Indiana reformulated the question to ask, “[w]hether the Eighth Amendment’s Excessive Fines Clause restricts States’ use of civil asset forfeitures.” While a respondent may restate the questions presented, it may not expand those questions. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). Thus, the Court refused to consider the State’s argument to overturn Austin.
For the second argument, Indiana contended that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. (Apparently because the Clause was not applied in that manner historically, it’s not “fundamental” or “deeply rooted.”)
The Court was not persuaded by this argument because Indiana’s position is inconsistent with the approach the Court had “taken in cases concerning novel applications of rights already deemed incorporated.” For example, the Court held that a North Carolina statute prohibiting registered sex offenders from accessing social media websites violated the First Amendment right to freedom of speech. Packingham v. North Carolina, 137 S. Ct. 1730 (2017). In so doing, the Court did not inquire whether the Free Speech Clause’s application to social media websites was fundamental or deeply rooted.
The Court concluded that regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is fundamental or deeply rooted, the Clause itself is, and the Court’s decision to incorporate it remain unchanged. Accordingly, the Court vacated the judgment of the Indiana Supreme Court and remanded for further proceedings not inconsistent with its opinion. See: Timbs v. Indiana, 203 L. Ed. 2d 11 (2019).
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Writer’s note: While the judgment of SCOTUS was unanimous, Justice Gorsuch and Justice Thomas each filed a concurring opinion wherein they contended the appropriate vehicle for incorporating the Excessive Fines Clause is the Fourteenth Amendment’s Privileges and Immunities Clause rather than the Due Process Clause. Justice Thomas also gave a detailed history of the origins and implementation of the Excessive Fines Clause and its predecessors to reach the inescapable conclusion that the Clause is a “core right worthy of Constitutional protection” and “a privilege of American citizenship” applicable to the States.
With this decision, it appears SCOTUS is signaling that the end is near for those who “police for profit.” As Justice Thomas said in a 2017 opinion, “[T]his system – where police can seize property with limited judicial oversight and retain it for their own use – has led to egregious and well-chronicled abuses.” Indeed, States collect millions of dollars annually in civil asset forfeiture schemes. Tyson Timbs sold $225 worth of heroin to undercover police officers. He is not exactly a multimillion-dollar kingpin. He was sentenced to one year of house arrest, five years probation, and drug treatment to overcome his opioid addiction. Is it justice – or greed – that’s served by taking his $42,000 Land Rover he purchased with money from his dead father’s life insurance?
Additional sources: nytimes.com, slate.com
