Apply Constitutional Ban on Excessive Fines to States, Supreme Court Urged

November 29, 2018 Updated: November 29, 2018

An Indiana man convicted of selling heroin worth less than $400 to an undercover detective may get back his confiscated $42,000 vehicle from state authorities, if the Supreme Court decides to extend to the states a constitutional ban on excessive fines that Indiana argues applies only to the federal government.

If the justices’ statements during oral arguments on Nov. 28 are any indication of how the Supreme Court may rule, the state of Indiana is poised to be overruled.

Civil libertarians have long complained that asset forfeitures arising from criminal convictions and cases in which a person is merely suspected of a crime can be arbitrary and excessive. They say police and prosecutors currently have an incentive to maximize profits instead of seeking the neutral administration of justice and so they pursue forfeiture with undue zeal.

A win by petitioner Tyson Timbs could encourage more asset-forfeiture challenges in the courts.

Instrument of the Crime

After a physician wrote Timbs a prescription for foot pain, the 37-year-old resident of Marion, Indiana, became addicted to hydrocodone and later heroin. After his father died, he spent most of the $70,000 in life insurance proceeds on a Land Rover. Undercover police caught him selling a total of $385 worth of heroin in two transactions, and the SUV was seized because he used it to drive to meet police.

The legal theory is that because the vehicle was used to commit a crime, it becomes an instrument of the crime and a party to the legal proceeding. This leads to odd-looking case names. For example, the name of the current proceeding is Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana.

Tyson Timbs (C) and senior Institute of Justice attorney Wesley Hottot (R) hold a press conference on the steps of the Supreme Court in Washinton on Nov. 28, 2018. (Institute of Justice)

Timbs pleaded guilty and was sentenced to a year of house arrest and five years of probation, but no prison time. A private law firm sued on behalf of the state to force Timbs to forfeit the vehicle. Although the court found Timbs used the SUV to transport heroin to his home, it held that seizing the car would be “grossly disproportionate” to the offense and therefore unconstitutional.

The court found the SUV was worth more than four times the $10,000 maximum monetary fine for the drug offense. The state appealed to the Indiana Court of Appeals and lost, but won in the Indiana Supreme Court. That court held that the Excessive Fines Clause of the Eighth Amendment wasn’t binding on Indiana because the U.S. Supreme Court never formally applied the provision to the states, so Timbs was out of luck.

Sympathetic Justices

With the exception of Chief Justice John Roberts, who said losing assets used in a crime “makes a lot of sense,” the justices seemed sympathetic to Timbs during oral arguments at the Supreme Court.

Justice Stephen Breyer asked Indiana Solicitor General Thomas M. Fisher if someone caught driving 5 miles an hour over the speed limit should forfeit their car, even if it is a “Bugatti, Mercedes, or special Ferrari.”

“Yes, it’s forfeitable … [property] forfeitures … have always been with us and they have always been harsh,” Fisher said.

Associate Justices Sonia Sotomayor, and Neil Gorsuch in the East Conference Room of the Supreme Court in Washington on June 1, 2017. (Alex Wong/Getty Images)

Justice Sonia Sotomayor told Fisher, “If we look at these forfeitures that are occurring today … many of them seem grossly disproportionate to the crimes being charged.”

In light of such abuses, Sotomayor continued, “How do we avoid a Star Chamber return?”

In English history, the monarch-directed Court of Star Chamber, abolished in 1641, was infamous for its arbitrariness and imposition of cruel punishments.

“The term Star Chamber has come to mean any lawless and oppressive tribunal, especially one that meets in secret,” one reference work reports. “The constitutional concept of due process of law is, in part, a reaction to the arbitrary use of judicial power displayed by the Star Chamber.”

Incorporation

During a particularly sharp exchange, Justice Neil Gorsuch chided Fisher for opposing applying—the legal term is “incorporating”—the Excessive Fines Clause against the states.

“We all agree that the Excessive Fines Clause is incorporated against the states,” Gorsuch said. “Can we at least agree on that?

Fisher said, “You have to take into account the history and traditions of the right being claimed.”

Gorsuch persisted. “Whatever the Excessive Fines Clause guarantees, we can argue, again, about its scope … but whatever it, in fact, is, it applies against the states, right?

“Well, again, that depends,” Fisher said.

“Most of these incorporation cases took place in like the 1940s … and here we are in 2018 … still litigating incorporation of the Bill of Rights. Really? Come on, General.”

Later in the conversation, Gorsuch told Fisher: “You’re going to lose not just the incorporation question but the merits question too.”

Justice Brett Kavanaugh added, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

A case preview by Steven D. Schwinn of the John Marshall Law School in Chicago offers a primer on the legal doctrine of incorporation.

“The rights in the Constitution’s Bill of Rights apply against the federal government; they do not apply by their own force against the states,” Schwinn writes.

But over time, the Supreme Court has gradually incorporated the rights against the states, relying on the Due Process Clause of the 14th Amendment. “In order to determine whether a right is incorporated, the Court asks whether the right is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’”

The Supreme Court last incorporated a right in 2010 in McDonald v. City of Chicago, finding that the gun-ownership protections of the Second Amendment applied to the states, Schwinn writes. Only some clauses of the Third, Fifth, Seventh, and Eighth Amendments haven’t been incorporated by the court.

Timbs contends the ban on excessive fines should be applied to the states, arguing that when the Eighth Amendment was ratified in 1791, protections against excessive fines were already a well-established legal norm.

The attorney for Timbs, Wesley Hottot of Seattle, said the case was “about constitutional housekeeping.”

“Five times over the past 30 years, this court has remarked that the freedom from excessive economic sanctions should be understood to apply to the states.”

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