The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, the Supreme Court will hear oral arguments in Timbs v. Indiana, an important property rights/asset forfeiture case. George Will recently published an excellent Washington Post column describing some of the issues at stake:
Tyson Timbs made a mistake, but not one as important as Indiana's Supreme Court made in allowing to stand the punishment the state inflicted on him. He was a drug addict — first with opioids prescribed for a work-related injury, then heroin — when his father died. He blew the $73,000 insurance payout on drugs and a $41,558 Land Rover, which he drove when selling $225 worth of drugs — two grams of heroin — to undercover police officers. Timbs's vehicle was seized and kept, which amounted to a fine more than 184 times larger than the sum involved in his offense….
The seizure was done under Indiana's version of civil forfeiture laws, which allow governments to seize property used in the commission of a crime. As they are often used, such laws are incentives for abusive governments, because the entity that seizes the property frequently is allowed to profit by keeping or selling it. Lucrative law enforcement will become lawless.
Under the "incorporation" doctrine, the Supreme Court has explicitly applied, through the 14th Amendment, most of the Bill of Rights' protections, piecemeal, against states' behaviors….
But although two federal judicial circuits and at least 14 state high courts apply the excessive-fines clause [of the Eighth Amendment] to the states, and although seven times the court (or two or more justices writing separately) has said that the Eighth Amendment as a whole applies to the states, it has never had an occasion to explicitly apply the excessive-fines clause….
I discussed Timbs in greater detail in this post, written back in June, when the Supreme Court first decided to hear it:
[T]he case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as "excessive" and to what extent the Clause applies to asset forfeitures, as well as more conventional fines….
[T]he Bill of Rights was originally intended to restrict only the federal government. But, as leading scholars on both right and left have come to recognize, the framers of the Fourteenth Amendment sought to apply the Bill of Rights against the states, as part of their more general effort to curb state governments' abusive mistreatment of minorities and others, most notably recently freed African-American slaves. As Eugene describes in some detail, the Supreme Court initially refused to apply the Bill of Rights to the states, even after the Fourteenth Amendment. But has gradually ruled that nearly all of the individual rights listed there are in fact incorporated. Multiple lower court decisions have ruled that the Third Amendment - one of the few provisions not yet addressed by the Supreme Court - should be incorporated, as well.
Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not….
The more difficult questions raised by Timbs are the extent to which the Excessive Fine Clause covers asset forfeiture as well as ordinary criminal fines, and what counts as "excessive."
Asset forfeiture abuse is a serious problem that often victimizes innocent people and particularly harms the poor. For these reasons, among others, it has attracted widespread opposition on both right and left.…
Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns). Nonetheless, the Supreme Court has already ruled that at least some asset forfeitures are covered by the Clause in the 1998 case of United States v. Bajakajian…
The last big issue that the Court may have to address in Timbs is what counts as an "excessive" fine. In Bajakajian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." This is far from a precise standard, and it often will not be easy to tell where mere ordinary disproportion ends, and the "gross" kind begins.
Timbs itself may be an easy case when it comes to "grossness." The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But if the Excessive Fines Clause is applied against the states, which prosecute the vast majority of criminal cases (and the lion's share of civil asset forfeitures, as well), federal courts are likely to have to deal with much closer cases in the future….
Like the asset forfeiture issue more generally, the Timbs case unites a wide range of groups across the political spectrum. The property owner is being represented by the Institute for Justice, a prominent libertarian public interest law firm. Organizations as varied as the ACLU, the Chamber of Commerce, the NAACP Legal Defense and Educational Fund, and the Pacific Legal Foundation, have all filed amicus briefs supporting Timbs. This unusual coalition reflects the fact that asset forfeitures are an affront to property rights, and disproportionately victimize the poor and racial minorities. However, asset forfeitures did enjoy the strong support of recently departed Attorney General Jeff Sessions, who last year reinstituted a federal policy that helps state and local law enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves. Sessions' policy drew widespread bipartisan opposition. But reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.
NOTE: The defendant in Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have a longstanding association. Among other things, I have worked with them on a number of other property rights cases. However, I have no involvement in this case. IJ's website has a lot of interesting information on the background of the case here.