Last week, the Supreme Court decided Timbs v. Indiana, agreeing 9-0 that the Eighth Amendment’s Excessive Fines Clause is incorporated against the states. The Court held that – like almost every other part of the Bill of Rights – the excessive fines clause restricts state and local governments to the same extent as the federal government.
In 1993, the Supreme Court applied the Excessive Fines Clause to in rem forfeiture proceedings in Austin v. United States. In rem forfeitures are essentially civil law suits instituted against property rather than people, which allow the government to take possession of the “rem” (thing) because of some connection to a crime, without actually convicting their owners or even proving their owners guilt. But the Court had never applied the Clause to state or local proceedings.
In Timbs, the Court held the Excessive Fines Clause limited Indiana’s ability to complete an in rem forfeiture of a Land Rover SUV that its owner had used to transport heroin. Mr. Timbs had recently purchased the seized SUV for $42,000 with insurance money received upon his father’s death–over four times the amount of money that he could have been fined in his criminal case. A lower Indiana court had already found this was an excessive fine under the U.S. Constitution. The Indiana Supreme Court reversed that decision based only on its erroneous determination that the Excessive Fines Clause was not incorporated against the states. Therefore, incorporation was the only issue in front of the U.S. Supreme Court. This case was not about whether, in fact, the forfeiture of the SUV was an excessive fine.
The Supreme Court set out a lengthy history of the prohibition on excessive fines. Because of this history, the Court held that the Excessive Fines Clause is both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” – only one of which had to be true for incorporation to be appropriate. Timbs v. Indiana, 586 U.S. ___, slip op. at 3 (2019).
The country has taken notice of civil asset forfeiture, or “legalized theft” as it has been called. And, now, so has the Supreme Court. This is essentially a unanimous decision. Justice Thomas wrote for himself, as he often does, to explain that rights should be incorporated against states under the Privileges and Immunities Clause and not the Due Process Clause. Justice Gorsuch indicated in a concurrence that he is likely to agree if that specific issue is ever squarely before the court. But all of the Justices were concerned about the frequency and creativity with which the government has violated the right to be free of excessive fines.
- If your client is losing her stuff, no matter what agency or court is taking it, and no matter what mechanism is being used, think about an Excessive Fines Clause challenge.
- Be creative. Justice Thomas, for one, has suggested applying a higher standard in these cases (clear and convincing evidence), and he wants you to preserve that issue. See Leonard v. Texas (Thomas, J., Statement respecting denial of cert.)
- Be aggressive. Mine the recent U.S. Supreme Court cases for their strong language. See, e.g., id. at 848 (“This 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.); Timbs (“Exorbitant tolls undermine other constitutional liberties.”)
- State court, federal court, it really does not matter. It will almost always be true that incorporated federal constitutional rights are to be interpreted identically no matter where you are. Once again, the Court noted and then distinguished the only exception: the Sixth Amendment’s Jury Clause. It requires jury trials in all felony cases, but it only requires unanimous verdicts in federal criminal cases. Why? “The result of an unusual division among the Justices.” Op. at 3 n. 1. Will something like that happen again? Probably not.