Supreme Court

The Supreme Court Will Hear Two Big Criminal Justice Cases Later This Year

The Court could strike a major blow for civil asset forfeiture reforms in the states and finally do away with an awful double jeopardy loophole.


World History Archive/Newscom

Later this year, the U.S. Supreme Court will hear oral arguments in two important criminal justice cases with the potential to limit abuses of civil asset forfeiture and close a loophole in the constitutional prohibition of double jeopardy. Here are the important details.

Timbs (and a 2012 Land Rover) v. Indiana

Oral argument: November 28

What's at stake: Does the Eighth Amendment's prohibition against "excessive fines" apply to the states as well as the federal government?

The story: Tyson Timbs was arrested in 2015 after selling heroin to undercover police officers. He pleaded guilty to one count of dealing a controlled substance and one count of conspiracy to commit theft, and he was sentenced to one year of house arrest followed by five years of probation. He was also required to pay investigatory fees and court courts. On top of that, the state of Indiana seized his 2012 Land Rover—which he had purchased with money received from his late father's life insurance payout, not with the proceeds of drug sales—on the ground that it had been used to commit a crime.

Timbs appealed the forfeiture of his vehicle, arguing that he was already being punished for his crime and that seizing the truck, valued at $40,000, violated the Eighth Amendment's ban on excessive fines. An appeals court found that the forfeiture of the Land Rover was "grossly disproportional" because it amounted to a penalty "approximately four times the maximum monetary fine" for the crimes Timbs had committed. The Indiana Supreme Court overturned that decision on the ground that the ban on excessive fines does not apply to the states.

Legal background: The Supreme Court has a long track record of ruling that limits imposed by the Bill of Rights on the federal government also apply to the states via the 14th Amendment's Due Process Clause. In 1962, for example, the Court ruled that the Eighth Amendment's ban on cruel and unusual punishment applies to the states, and in 2015 it reached the same conclusion regarding the amendment's ban on excessive bail. But the Court has never explicitly stated that states are constrained by the amendment's prohibition of excessive fines.

Why it matters: A decision applying the Excessive Fines Clause to the states would make it far easier to challenge unreasonable fines and fees, including not just forfeiture but cases where local governments hit homeowners with massive civil penalties for offenses such as unapproved paint jobs or Halloween decorations.

The fact that some local governments use fines and fees as a means to raise revenue has created a perverse incentive to target residents. After the 2014 shooting of Michael Brown in Ferguson, Missouri, a federal investigation into the city government found that 20 percent of its general fund came from criminal fines. And Ferguson is not alone in relying heavily on revenue from fines. A victory for Timbs would be an important step toward curbing this sort of abuse.

Gamble v. U.S.

Oral argument: December 5

What's at stake: Should the "separate sovereigns" loophole in the Fifth Amendment be closed? In other words, does getting convicted of the same crime by the state and the feds count as a violation of the amendment's ban on double jeopardy?

The story: Terrance Martez Gamble was convicted of second-degree robbery in 2008. As a result of that conviction, he was prohibited from owning a firearm under both state and federal law.

In 2015, Gamble was stopped by the cops, who found a handgun in his car. He was convicted of unlawfully possessing a firearm by both the state of Alabama and the federal government. He will not be released from prison until February 2020—three years later than if he had been convicted only at the state level. Gamble appealed his federal conviction on the ground that he was being punished twice for the same crime, which the Fifth Amendment explicitly forbids.

Legal background: Unfortunately for Gamble, the Supreme Court has ruled that the same behavior can be punished under both state and federal law without violating the ban on double jeopardy because the state and the federal government are two distinct "sovereigns." This "dual sovereignty" doctrine has a dubious history. It first arose in an 1852 case (Moore v. Illinois) dealing with fugitive slaves and was confirmed in a Prohibition era case (U.S. v. Lanza).

Why it matters: The federalization of many crimes in recent decades means there is now significant overlap between state and federal offenses, creating more opportunities for multiple convictions based on the same actions. That redundancy seems to conflict with the intent of the Double Jeopardy Clause and makes it harder for states and the federal government to set appropriate penalties, since neither knows when the other will seek an additional conviction. A victory for Gamble could mean tossing out a longstanding but poorly conceived precedent (or at least limiting its use), protecting defendants from serial prosecutions for the same crime.

NEXT: Hillary Clinton Says Democrats Can't Be Civil Until They're Back in Power

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  1. What’s at stake: Does the Eighth Amendment’s prohibition against “excessive fines” apply to the states as well as the federal government?

    Umm…obviously it does. I mean, yeah, really obviously. In fact, it’s another amendment if you read just a little further down from the 8th. Good points in the article as well.

    What’s at stake: Should the “separate sovereigns” loophole in the Fifth Amendment be closed? In other words, does getting convicted of the same crime by the state and the feds count as a violation of the amendment’s ban on double jeopardy?

    Much less obvious in terms of law, but in terms of simple logic obviously it should apply. There was no exception for the 5th amendment, but one might suppose that there wasn’t one because it was simply assumed that the FedGov did not have the power to make law in many of the realms where it currently makes law.

    Here’s hoping they rule the obvious way on this one. It’s an issue that’s bothered me a long time, and the FedGov needs a lot more checks on it’s power.

    1. The amendment simply states that no person shall be put in jeopardy twice for the same charges. It doesn’t specify by whom.

      1. Join the military. You can be charged three times.

        1. If the constitution says you cannot be put in jeopardy twice for the same charges, then you cannot be tried twice. If there are any exceptions, then they would have been specified in the constitution. If no exceptions are listed, then there are no exceptions. If it needed to specify “by whom”, it would have. The constitution says you cannot be tried twice for the same accusation. Period. The way that fedgov gets around that is to find a NEW charge to bring against you. Typically, in a race-related alleged offence (the beating of Rodney King, e.g.), the fedgov charges the defendant with “depriving a person of their civil rights, which is a federal offence. That works in cases like Rodney King (whether or not it’s bullshit), BUT it is very damned hard to make something like that work in a civil forfeiture case, where no one got hurt, and it is pretty obvious that it is the same crime that is being tried twice.

        2. By joining the military you agree to follow their rules…

    2. Furthermore, if the amendment only applies to the federal government, they can’t prosecute a person once they’ve already been in jeopardy for those charges in a state court because the federal government is prohibited from putting someone in jeopardy a second time for the same charges.

    3. My only concern is that this “loophole” was responsible for putting away a lot of people in the civil rights era, including lynchers and klansmen who would get acquitted by a jury of their peers despite overwhelming evidence and then get convicted on violation of civil rights by the feds.

  2. “This “dual sovereignty” doctrine has a dubious history.”

    That “dubious history” is called federalism. Which of course is just a byword for racism or something.

    1. “This “dual sovereignty” doctrine has a dubious history. It first arose in an 1852 case (Moore v. Illinois) dealing with fugitive slaves and was confirmed in a Prohibition era case (U.S. v. Lanza).”

      It should also be noted that that “dubious history” includes the federal government trying cases of violence against African Americans where State courts had ruled in favor of the perpetrator.

  3. My guess is that the Eighth gets explicitly incorporated, the dual sovereignty issue stands. It’s like the RICO statutes, it’s a broad power that lets prosecutors wield a heavy hammer and the government a second bite at the apple and they aren’t giving that one up. In a better world, there would be less overlap between state and federal law and an automatic “time served” reduction in sentencing but this world isn’t that. Do you want to see the drug dealers/terrorists/sex traffickers/street mimes get off on a technicality simply because they’ve already done the time for their crime? I think not – these scum deserve eternal punishment and it’s a foolish law that ever lets them see the light of day again as a free man!

  4. Wouldn’t it be cool if the Supreme Court took this excessive fines case to say “the excessive fines clause applies to the states because the whole Bill of Rights applies to the states, and the excessive fines clause is part of the Bill of Rights, QED.”

    Not going to happen, of course, mainly because it will require states to use grand juries (5th Amendment) and civil juries (7th Amendment), but wouldn’t that be fun?

    1. Piecemeal incorporation of the Bill of Rights never made any sense to me

      1. I doesn’t have to make sense, it just needs 5 votes out of 9.

        (or 51 votes out of 100, after both sides have had their court-packing plans enacted)

  5. I am not completely allergic to the state and feds both punishing a single crime, so long as the sentence runs concurrently.

    I am not fond of taking two swings at the same guy. It’s bad enough that someone might have to undergo both a criminal and a civil defense. Two criminal defenses seems unreasonable.

    Perhaps my real complaint is that the Feds shouldn’t have laws that duplicate state laws.

    1. The States are giving up on Cannabis Prohibition. So that is being rectified.

  6. These will be good tests of whether new justices Gorsuch and Kavanaugh will apply common-sense fairness to stupid, fascist laws.

    1. I’m feeling that we’ll get better rulings that we’d get if Clinton appointed the judges, and I’m feeling we’ll get more libertarian rulings. But then, maybe it’s just wishful thinking.

  7. The 2nd amendment protects his right to keep and bear Arms [period]

  8. The federal government should have very few laws and the states should not have criminal laws that overlap those federal criminal statutes.

    1. The States are giving up on Cannabis Prohibition.

  9. Didn’t the SC rule a decade or two ago that forfeiture (seizure of property, e.g. a Land Rover, “used in a crime”) is not punishment?

  10. The dual sovereignty doctrine also allows multiple states to prosecute the same criminal conduct, if the criminal conduct occurred in multiple states.

    Alabama and Georgia conspired to use that doctrine to obtain a conviction by guilty plea and a life sentence for murder in one state, Georgia, and then Alabama used that guilty plea as the basis for a conviction for murder (same victim) in Alabama, and imposed the death penalty. U.S. Supreme Court said no problem. Heath v. Alabama, 474 U.S. 82 (1985). Heath traveled to Georgia to hire hit men to kill his wife, then returned home with the hit men to Alabama, where the hitmen killed his wife. Heath was executed.

    A drug conspiracy which distributes drugs in all 50 states, could conceivably be prosecuted in federal court and in all 50 states. You could, under the dual sovereign doctrine, be acquitted in all 50 states, but still convicted, and sentenced, in federal court. Sound fair?

  11. Wouldn’t it have been nice if Kavanaugh’s Senate hearing had focused on important issues lie this, rather than unprovable allegations about a party back when he was a teenager? This is a fundamental constitutional issue, so he wouldn’t have been pre-judging a case (though for tactical reasons he might have tried to weasel out of answering).

  12. If you cannot judge the past, how can you learn from it? There was no justification for locking up hundreds of thousands of Americans for nothing more than their ancestry (while leaving the millions of Americans descended from our other adversaries free and sending many to fight against them). And it isn’t like nobody realized this at the time. Korematsu wasn’t a unanimous decision, the governor of Colorado at the time fiercely opposed it, etc.

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