Bill of Rights

Supreme Court Will Hear Case on the Excessive Fines Clause that Could End Up Curbing Asset Forfeiture Abuse

The case will decide whether the Excessive Fines Clause of the Eighth Amendment applies to the states. If so, it will also have to address how much it restricts asset forfeiture.


Asset forfeiture.

Yesterday, the Supreme Court decided to consider Timbs v. Indiana, an important constitutional property rights case. As my co-blogger Eugene Volokh and Reason's Damon Root explain, the 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.

Like Eugene and Damon, I believe the case for "incorporation" of the Clause against the states is extremely strong, and should command widespread agreement on the Court. The other issues are somewhat tougher. But there is still a strong argument for using the Clause to impose significant constraints on at least a wide range of asset forfeitures.

The 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 Supreme Court's current test for determining what parts of the Bill of Rights to incorporate under the Due Process Clause of the Fourteenth Amendment was most recently restated in McDonald v. City of Chicago (2010), which incorporated the Second Amendment right to bear arms. It requires the court to consider whether the right in question is "fundamental to our scheme of ordered liberty." Protecting property rights against overreaching governments seeking to impose vastly disproportionate fines was clearly seen as a fundamental value by the Founders who drafted the Bill Rights, and by the framers and ratifiers of the Fourteenth Amendment. If you prefer a less originalist and more "living constitutionalist" approach to the test, it's worth noting the widespread opposition to asset forfeiture abuse today, which unites such disparate groups as the ACLU, the NAACP, libertarians, and many conservatives. The same result applies if you prefer the alternative approach to incorporation favored by Justice Clarence Thomas and many legal scholars: using the Privileges or Immunities Clause, rather than the Due Process Clause. As Thomas notes in his concurring opinion in McDonald, property rights are among the "privileges or immunities" of citizens that the Clause was intended to protect. Thomas is also a longtime critic of asset forfeiture abuse, and has repeteadly argued for stronger exercise of judicial review to curb it.

In sum, it would be very surprising if the Court ruled against incorporation. Indeed, I would be surprised if there were more than one or two votes against it, and a unanimous decision on that issue is entirely possible.

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. In many states, owners have little opportunity to contest forfeiture, thereby enabling authorities to hold on to their seized property for months or even years, without so much as a hearing. In recent years, many states have enacted laws curbing asset forfeiture and a few have even abolished civil forfeiture altogether. Unfortunately, Attorney General Jeff Sessions 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' actions drew bipartisan opposition, but reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.

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. A narrow 5-4 majority consisting of the unusual coalition of Justice Thomas and four liberals struck down a criminal asset forfeiture on the grounds that the Clause covers forfeitures that are used as "punishment" for an "offense" and apply "only upon a person who has himself been convicted" of the offense in question. This reasoning seems to exclude in rem civil forfeitures, which, technically, are proceedings against the targeted property rather than the owner, and are often applied even against the possessions of owners who have not been convicted or even tried for any offense, simply on the theory that their property was used to commit a crime by someone else. In an opinion written by Justice Anthony Kennedy, the four conservative dissenters in Bajakajian argued that the majority's seeming exclusion of civil forfeitures was a mistake, and that such forfeitures should not "be left completely unchecked by the Constitution." It is not entirely clear whether Bajakajian really does exclude all civil forfeitures, or whether Thomas' opinion for the Court is best interpreted as holding that criminal forfeiture is covered, without making a definitive ruling on the civil kind.

While the defendant in Timbs was convicted of a crime, the state used civil forfeiture to seize his vehicle, rather than the criminal kind. This case, therefore, squarely presents the civil forfeiture issue. Five of the nine justices who participated in Bajakajian have since left the Court, and it is possible that a majority of today's Court might be willing to take a broader view of the Clause's coverage than the majority seemed to in the 1998 case. As a practical matter, the criminal-civil distinction is not a very compelling place to draw the line, because civil forfeitures surely are a kind of "fine" imposed to curb alleged participation in crime, notwithstanding the legal fiction that the proceeding targets property and not its owner.

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.

If courts decide to strike down only fines and forfeitures with very extreme disproportions between the seizure and the offense, then incorporation will only have a modest impact. In my view, that would be an unfortunate development, since the Clause forbids all "excessive" fines, not just those where the excessiveness is particularly egregious. But such a deferential posture could certainly arise, and indeed has when it comes to some other constitutional rights—including the right to bear arms—the last part of the Bill of Rights to be incorporated. The reach of the Clause would also be significantly constrained if the courts conclude it only applies to criminal forfeitures, not civil ones.

It would be unfortunate if incorporation of the Excessive Fines Clause ultimately had little impact on forfeiture.

Violations of the Excessive Fines Clause are not the constitutional flaw in current asset forfeiture practices. In my view, many forfeitures also violate the Due Process Clause of the Fourteenth Amendment, though the Supreme Court has yet to rule on that issue. It is also arguable that the civil forfeitures of innocent owners' property violate the Takings Clause of the Fifth Amendment, a position the Supreme Court rejected in 1996, but which should perhaps be reconsidered.

If, as is likely, the Supreme Court rules that the Excessive Fines Clause applies against state governments, it will not be the end of the longstanding legal battle over asset forfeitures. But it could potentially be a major step in the right direction.

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.

UPDATE: In the initial version of this post, I mistakenly assumed that the Timbs case involves a criminal forfeiture rather than a civil one (as is actually the case). I apologize for this mistake (which I fortunately caught within 20 minutes of posting), and have now corrected it.

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  1. “whether the right in question is “fundamental to our scheme of ordered liberty.””

    There’s a clear and unambiguous standard. /sarc

    First they said ordered liberty could survive even with double jeopardy for criminal defendants. Then they said ordered liberty forbade this.

    First they said ordered liberty didn’t need the privilege against self-incrimination. Then they said self-incrimination was protected by ordered liberty.

    What will the magic 8-ball reveal this time?

    Or they could simply say that the privileges and immunities of U. S. citizenship include at least those rights spelled out in the first eight amendments.

    1. You are confusing two “ordered liberty” standards. Originally, the Court incorporated a right if it was “fundamental to the concept of ordered liberty” and looked to all democratic republics for guidance. The Warren Court changed this standard to one looking to American history for guidance as to whether the right in question was fundamental and, therefore, worthy of incorporation. Many rights failed the original version, because the United States interprets the rights listed in the Bill of Rights more broadly than those rights are interpreted in other democratic republics. Those same rights passed the revised version, because of its focus on the American view of those rights.

    2. So, unanimous juries?

    3. Right, so it just is fancy words for the Supreme Court following the election returns and/or popular opinion.

    4. Then, we will have to determine the exact breadth of them (a debate going on for about 200 years and counting) and then what “due process” generally means (since it doesn’t just mean those things) and then what other privileges and immunities of a substantive nature there are (e.g., some discretion over your children, always seen as a basic right & of the sort slavery denied).

      The fact it is “simple” is not grounds alone to simply incorporate as a bloc all the first eight amendments (and in the process, various jury related procedures would suddenly change including non-use of grand juries in many states in various cases) & on top of that you have a diverse number of legal questions that are complicated, that do develop over the years, case by case, and is not a result of some simple process.

      “Due process of law” was like that from the days of Magna Charta, probably.

      1. Yes, the 14th Amendment doesn’t protect grand juries and unanimous trial juries, it just protects well-established rights like contraception, abortion and gay marriage.

        1. (no “complicated” legal questions there)

        2. Constitutional questions aside, are you seriously opposed to contraception?

          1. Are you seriously opposed to unanimous jury verdicts?

          2. I’m opposed to forbidding states/cities/whatever from deciding to prohibit or allow them, which is what the courts did

        3. “Yes” means what? Who are you agreeing with?

          The reply skips over everything basically to borderline troll.

          Basically, yes, the 14A reasonably can be applied to not protect grand juries in states if an alternative means is present that follows basic due process of law. A term, yes, not determined by some easy formula, but working through the issues year after year. Probably non-animous juries though that is so much an outlier in some cases that maybe not, at least in very serious cases.

          Again, no easy answer. It is reasonable to accept that some basic right to family planning is protected both as a liberty and equal protection matter. Choices over family life originally and now was seen as basic to liberty there. The other questions are somewhat more complicated but again yes it can be determined that the 14A guards against forced pregnancy but allows Louisiana if it wants to have juries decide simple felonies by 11-1 verdicts.

          1. “yes it can be determined that the 14A guards against forced pregnancy but allows Louisiana if it wants to have juries decide simple felonies by 11-1 verdicts.”

            Not only can it be determined, but it *was* determined, by the Supreme Court itself!

            So we’re back to asking whether the Supreme Court was right, or rational, in doing this.

            1. “Basically, yes, the 14A reasonably can be applied to not protect grand juries in states if an alternative means is present that follows basic due process of law.”

              So, could the 14A be interpreted not to protect the right to use, say, condoms, so long as there is an alternative means of family planning available which satisfies due process of law?

              1. In any case, if we ignore considerations of “incorporation,” wouldn’t it be enough, in criminal trials, to give the defendant notice of the charges and an opportunity to answer them? Why would it be necessary to have a judicial hearing separate from the main trial – why not just let the prosecutor file whatever charges she wants and give a full trial at once?

        4. I’m fine with activist judges increasing personal liberty because that is in the spirit of the Constitution.

          I am not fine with activist judges who magically increase the power of government to regulate huge new areas sans amendment, because that is opposite to tbe spirit of the Constitution, which is to clearly specify powers for government to have, and no others.

    5. See Thomas concurrence in McDonald v Chicago – He makes a strong case that the first 8 BoR are uncorporated under the P&I clause.

      Further, it is hard to reconcile the phrase “All Laws” somehow means only some of the laws or only the laws deemed worthy

      1. “He makes a strong case that the first 8 BoR are uncorporated under the P&I clause.”

        That’s nonsense. That leaves only 9A, and 10A.

        10A can’t be incorporated against the states because it’s about the relationship between the states and the federal government.

      2. Matt Slyfield – Thanks for catching my typo

        It should read :

        See Thomas concurrence in McDonald v Chicago – “He makes a strong case that the first 8 BoR are incorporated under the P&I clause.”
        (not uncorporated – and not un-incorporated)

        Sorry for typo.

  2. Given their new-found reluctance to actually do their jobs and make difficult judicial and Constitutional law decisions, I predict they will remand it back to the lower courts to correct some spelling and grammatical errors.

    1. While I cannot disagree with your cynicism, calling this reluctance “new-found” is wildly inaccurate. This is a very long-standing reluctance.

      1. True, but it certainly seems to be getting worse.

        Less and less argued cases each year, and more and more of those cases either DIG’d, returned for further clarification, or just plain punting on addressing the core questions put before the court.

        Justice Thomas used to come off as a gadfly, but it is now undeniable he is the truest voice calling the rest of the court out for their judicial fecklessness.

      2. Not withstanding patent and bankruptcy cases. It seems those are all they really want to address theses days, and given how few cases they grant certain to each year consume an inordinate amount of the docket.


        1. Stupid spell checker, and inability to correct posts here.

  3. Civil forfeiture should also be attacked via the 5th Amendment. The government cannot seize property for public use without just compensation. Seizing $5,000 in cash would require the government to give the person $5,000 in cash. Seizing a $40,000 Land Rover would require government to give the person $40,000 in cash. That would end asset forfeiture because there is no incentive for government to seize property.

    Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    1. As the article above already points out, that argument was explicitly rejected in Bennis v Michigan under the reasoning that a taking that complies with the 8th and 14th Amendments by definition counts as due process, therefore the 5th Amendment is satisfied.

      While I dislike the outcome of Bennis, it’s hard to argue with the court’s logic on that argument.

      1. How? The 5th Amendment doesn’t just require Due Process, it requires “just compensation.”

        1. So you are claiming that when a convicted defendant is given a custodial sentence through due process, and hence deprived of liberty, the 5A requires compensation?

          1. No. When property is seized absent a criminal proceeding, it is.

            1. OK, so if I’m fined $150 for speeding, which is civil, not criminal, do I need to be compensated?

        2. No, that’s an “or” clause. (Technically, “nor”.)

          You may not “be deprived of … property, without due process of law” NOR may your “shall private property be taken for public use, without just compensation”. While both are related to property rights, they completely independent protections.

          The first clause says that after due process of law (but it could be either civil process OR criminal), the government can take your stuff without paying for it.
          The second clause says that they can take your stuff regardless of process as long as they pay you for it.

    2. Reading compression is still key. There are semicolons separating out the operative phrases.

      (1) No person shall be twice put in jeopardy for the same offense
      (2) No person shall be compelled to be a witness against himself in a criminal case
      (3) No person shall be deprived of life liberty or property without due process
      (4) No property shall be taken for public use without compensation

      The fruitful guide towards restricted civil forfeiture is to focus on providing due process according to (3), which is what all the serious advocates of reform are doing.

      1. True that.

        The issue with many civil forfeiture cases is not necessarily the value of the property seized, but rather the due process afforded the erstwhile owner.

        I have no issue with seizing $40,000 of assets after conviction beyond a reasonable doubt of a reasonably serious felony. I have a big issue with law enforcement seizing $40,000 on a hunch, and effectively requiring the owner to prove that the assets were legitimately theirs.

        It is a red herring to argue that the maximum permitted fine is $10,000 (where the max imprisonment is 20 years) and that therefore a $40,000 forfeiture/fine is excessive. We normally don’t punish serious crimes by fines alone, so one needs to look at the totality of the punishment to see if it shocks the conscience.

  4. Question: could ‘excessive’ be defined, not just in terms of the value of the property, but in the context of the dollar value of the seized property against the lack of a criminal guilty verdict?

    To me, it seems as if there two components, the property seized and whether there is a guilty verdict. The most egregious case would be a large dollar forfeiture with no trial/verdict, while the least troublesome would be a smaller dollar forfeiture accompanied by a guilty verdict.

  5. The whole civil forfeiture thing is obnoxious. It’s a clear incentive for abuse of power to start with, which ought to be obvious to anyone.

    It is also capricious. Seize a used car worth $5000, or a brand new one worth $40,000. It’s all the same (though probably the $40K car is more likely to be taken, for not-very-mysterious reasons).

  6. I’m trying to understand the Indiana State Supreme Court ruling. Did they solely rule on the federal clause, leaving the possibility of a different ruling based on the State Constitution?

    From the Indiana State Constitution:
    Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.

    Should Timbs first have appealed based on the State Constitution?

    1. I had this same reaction when I first heard about the Timbs case and the issue presented. The question that popped into my head was “well, what does the Indiana state constitution say?” The only reference I could find was from the Appeals Court opinion, which states in a footnote, “We also note that the Indiana Constitution contains its own provision against excessive fines. See Ind. Const. art. 1, sec. 16 (“Excessive fines shall not be imposed). Because neither side addresses the Indiana Constitution, we base our opinion on the federal Excessive Fines Clause.” This statement can be found on page 18 of Petitioner’s Appendix, which can be found on the Supreme Court’s website under docket 17-1091.

      A cursory search on Lexis indicates that the Excessive Fines Clause of the Indiana Constitution does not have a lot of case law interpreting it, although I stress that my search was cursory and not exhaustive. As far as I can tell neither party seemed interested in talking about the Indiana state constitution in a case that involved actions by the Indiana government against an Indiana citizen. I would think raising both arguments would be in the benefit of the defendant as provides two possible means of ruling in his favor. Given that Volokh and Somin both regularly make arguments based on principles of federalism, I thought there might be a post discussing how this would have been better had the state constitutional question been addressed.

      1. One of the other Volokh posters has discussed the lack of Law School eductation concerning State Constitutions. I think this is another example of that. I think this is an area in dire need of additional coverage, its just 50 times as complicated.

  7. This is the only issue where Somin is on the right side of anything.

    1. Somin was against Obamacare, you missed a fusillade of blogging about that. And he is right about free speech, and a whole host of other things. He just suffers from a mild case of Trump Derangement Syndrome and a life threatening case of Open Borders Lunacy.

      1. Excellent diagnosis. Now if we can only find a cure for his libertarianism-driven disdain of nations.

        1. The nation-state as the ultimate international actor is quickly losing its status.

          Globalization of media, communications, transportation, finance, and trade (and currencies, i.e. Bitcoin) are all cutting into the nation-state’s authority.

          Pres. Trump is trying to fight this with 18th century mercantilistic thinking, and it’s not going to end well.

          Of course, 18th century style thinking plays well with ignants, maybe because it’s so simple.

        2. Yes, if there’s one ideology that has no place at, its libertarianism.

          Jeezus you people…

        3. The only cure for Bush Derangement Syndrome was for a “worse” Republican to come along (Trump), allowing the patient, with time, to realize that their initial psychosis was a product of a specific time and place. The cure has the side effect of reputational rehabilitation of the previous “as bad as Hitler” Republican. Unfortunately, like herpes, it cannot fully be cured and comes back in another form as “(fill in the blank) Derangement Syndrome.” Thankfully, though when a Democrat has the presidency, the patient has a wonderful quality of life.

          Yes, you are correct that Open Borders Lucacy is a particular strain of libertarian Disdain for Nations. That condition can be treated with repeated injections about the importance of language, borders, and culture into any debate with the the patient regarding policy. However, the disease can only be managed, as Disdain for Nations patients tend to assume humans are generally good, rather than generally bad, as some sort of genetic predisposition to unwarranted optimism.

          1. For well being progress, as in actual measures of health, wealth, and longevity, in an economically free society, the more the better.

            Julian Simon showed that , see The Ultimate Resource v2, online.

            Strangely, the left, who wants to import people hand over fist to gain voters, loathes Julian Simon.

  8. Unless the asset is a gun, right Ilya?

  9. The Supreme Court already has held there are limits on asset forfeiture as a matter of due process and in some cases by usage of the Eighth Amendment. I’m not sure how much more apply “excessive fines” to the states explicitly is going to change that specifically.

    The question turns on what is deemed “excessive” but that can be done now via due process and other specific provisions. For instance, Bennis v. Michigan didn’t have to come down the way it did (fraction interest in a car owned by a wife not protected because she was an “innocent owner” after it was seized because her husband was caught in it with a prostitute). But, incorporating the excessive fines provision very well could not change things a lick there.

    Anyway, it doesn’t make sense that the clause isn’t incorporated as I think many justices assumed it already was (I flagged dicta that said so years ago on this very blog). If explicitly incorporating it will help, that would be good. Fines are often an injustice with strong equal protection difficulties.

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