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Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures

The Court seems very likely to rule that the Excessive Fines Clause of the Eighth Amendment applies to state governments, and that at least some asset forfeitures violate the Clause. Potentially a big win for property rights and civil liberties.

Asset forfeiture.Asset forfeiture.

This morning, the Supreme Court heard oral argument in Timbs v. Indiana, an important asset forfeiture and property rights case. I wrote about the issues at stake here and here. The big questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. If the answers to these two questions are both "yes," the Court could also potentially address the issue of what qualifies as an "excessive" fine.

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states. The justices also seem likely to rule that at least some state asset forfeitures violate the Clause. Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation. It is hard to say, however, what - if anything - the Court will do on the question of how to define "excessive." The justices could well decide to leave it to the lower courts, at least for the time being.

On the incorporation question, all the justices who spoke seemed to favor incorporating this right against the states. This is not surprising, since it would be anomalous to incorporate nearly all of the rest of the Bill of Rights against states (including other parts of the Eighth Amendment, such as the Excessive Bail Clause), yet leave out the Excessive Fines Clause. The justices seem to agree on this fundamental point. As Neil Gorsuch put it in today's argument, "[w]e all agree that the Excessive Fines Clause is incorporated against the states." Similarly, Justice Brett Kavanaugh asked Indiana Solicitor General Thomas Fisher: "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?"

A few parts of the Bill of Rights do remain unincorporated (most notably the Third and Seventh Amendments). But defending such omissions after almost everything else has already been applied to the states, seems like a losing cause. The Third Amendment has been ruled to be incorporated in multiple lower court decisions.

Fisher, in fact, made little effort to oppose incorporation of the Clause. Instead, he argued that, while it might be incorporated as a general rule, it should not be applied to "in rem" forfeitures of property (where the proceeding is technically against property allegedly used in a crime, rather than against the owner). On this theory, the Excessive Fines Clause applies to "punitive" fines that target the owner, but not civil forfeitures that seek to confiscate property without imposing any penalty on the owner as such.

The justices seemed skeptical of this argument, too. Among other things, it would enable states to impose massive penalties on defendants simply by relabeling fines as in rem forfeitures. As Justice Stephen Breyer explained, Indiana's theory would open up a giant loophole in the Excessive Fines Clause: "what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy [he was driving]?" Fisher was forced to concede that would indeed be permissible under his approach. He even admitted it would apply if the person charged with speeding was only 5 MPH above the speed limit.

As Justices Gorsuch and Sonia Sotomayor pointed out, modern civil asset forfeitures have a massive punitive component, which cannot be eliminated simply by labeling them as "in rem" proceedings. Similarly, Justice Ruth Bader Ginsburg emphasized that "whether you label it in rem or in personam, let's remember that .. things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things."

Last year, Justice Clarence Thomas (who, as is his usual oral argument practice did not speak today), wrote an opinion in which he urged the Supreme Court to take up the asset forfeiture issue and emphasized that "Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes" and suggested that the Court should "align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation." Presumably, that includes subjecting civil forfeitures to the constraints of the Excessive Fines Clause.

Various justices also noted that the Supreme Court has already ruled, in Austin v. United States (1993), that some federal in rem forfeitures are covered by the Excessive Fines Clause - thos that are "punitive" in nature. If the Clause is incorporated against the states, the same logic should apply to state forfeitures, as well.

Unlike the issue of incorporation, the Court may not be unanimous on the question of whether and to what extent the Clause applies to state in rem civil forfeitures. But it seems highly likely there will be a majority in favor of applying the Clause to at least some substantial category of such state forfeiture cases. At the very least, Gorsuch, Sotomayor, Thomas, Ginsburg, and Breyer all seem inclined in that direction (in Thomas' case based on his earlier statements rather than anything said today).

The justices seemed much more uncertain about the question of what exactly qualifies as an "excessive" fine in the forfeiture context. Many of the questions posed to Wesley Hottot, counsel for Timbs, addressed this very issue. It is indeed a tough question, and it's possible the justices will not try to settle it, but instead leave it to the lower court. As Justice Elena Kagan put it, "it just seems as though there are two questions. And one question is incorporating the right, and the other question is the scope of the right to be incorporated." The Supreme Court could address the definitive of "excessive" more fully at some point in the future, after lower state and federal courts have had a chance to weigh in.

In my view, the Timbs case itself should be fairly easy to decide. In United States v. Bajakijian, 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 hardly a precise standard, and it may often be hard to tell whether a forfeiture is "grossly disproportionate" or not. But Timbs seems clearly on the "gross" side of the line. 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 there are likely to be cases where things are much less clear.

Even if the justices punt on the excessiveness issue, a ruling that incorporates the Excessive Fines Clause against the states and holds that the Clause applies to at least some substantial number of civil asset forfeitures would be an important victory for civil liberties and property rights. The asset forfeiture system has led to serious abuses that especially victimize poor and minority property owners. If the Timbs case ends up curbing those abuses, it would also be a notable success for the broad cross-ideological coalition backing Timbs, including such varied groups as the ACLU, the Chamber of Commerce, the NAACP Legal Defense and Educational Fund, and the Pacific Legal Foundation, among others.

NOTE: Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have longstanding ties. 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: I have made a few minor additions to this post.

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  • John Rohan||

    Someone explain this part to a non-lawyer, please. Even if the justices rule in favor of Timbs, and rule that the Excessive Fines Clause does indeed apply to the states, that still wouldn't affect all asset forfeiture cases, would it?

    I don't know how many of these cases there are, but every news story I read about the truly egregious cases of civil asset forfeiture, it concerns someone who had his vehicle or cash seized even though he was never charged with a crime. If he wasn't prosecuted, then there's no fine to measure this against, and so it looks as if this ruling wouldn't apply one way or the other.

  • gormadoc||

    Fisher tried to argue that such instances were okay, as the proceedings are against the property and not the owner. Gorsuch, Sotomayor, and Ginsburg didn't agree, as it's still punitive towards the owner. I really doubt Thomas would agree or the rest of the judges, for that matter.

    It'll probably end up something that governments can't do and yet will for a time, protected by QI.

  • gormadoc||

    That civil asset forfeiture can violate the Constitution isn't really at question, though the Supreme Court needs to say it. The question is where the penalty becomes excessive, but I'd think that forfeiture in regards to a non-crime is definitely above that line.

  • loveconstitution1789||

    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.

    The 5th Amendment already applies to make asset forfeiture worthless to police. All seized property requires just compensation. Police seize $1000 and they must give the owner $1000 in just compensation.

    Problem solved. You're welcome.

  • John Rohan||

    " such instances were okay, as the proceedings are against the property and not the owner."

    Charging "property" with a crime seems pretty far-fetched, although its possible there's actually court precedent for that, when slaves were considered property in the pre-Civil War south. In that case, I would like to ask Fisher, shouldn't even the property [in this case, the car] have the presumption of innocence until proven guilty?

  • Remember to keep it all polit||

    The examples I remember for justifying crimes against property were smuggled goods or pirate booty or flotsam on a beach, where the legitimate owners may not be knowable.

    It seems clear to me that if the owner is known, then there has to be a criminal conviction as an absolute minimum. Anything else is just pussy-footing around the clear intent of the Constitution.

  • gormadoc||

    Yes, smuggled goods and the vehicles for those goods when the owners are not prosecutable for some reason.

    We've gotten pretty far from that.

  • Armchair Lawyer||

    What if the owner is known, but can't be prosecuted, as they're in another country without extradition?

    What if the owner can't be convicted beyond a reasonable doubt? IE, they "lend" their airplane to a friend who uses it to smuggle cocaine repeatedly.

  • James Pollock||

    "What if the owner is known, but can't be prosecuted, as they're in another country without extradition?"

    You impound the property in question, and release it upon demand by the owner. Who you then arrest. After the trial, seize the goods in question, or return them to the owner when they are released from prison.

    "What if the owner can't be convicted beyond a reasonable doubt?"
    Convict whoever you caught. Pass a law imposing strict liability instead of requiring intent, and throw some people in jail who honestly didn't know what their significant other or "friend" was using their property for.

  • Armchair Lawyer||

    "Release it upon demand of the owner"

    Who of course will use a lawyer to demand the item. While the owner sits offshore.

    "Strict liability"
    Oh my...
    Hey, friend can I borrow your pyrex baking dish? Sure? Thanks...
    2 weeks later... Oh, BTW, you're on criminal meth making charges because your friend was using your pyrex dish to make meth.

  • James Pollock||

    "'Strict liability'
    Oh my...
    Hey, friend can I borrow your pyrex baking dish? Sure? Thanks...
    2 weeks later... Oh, BTW, you're on criminal meth making charges because your friend was using your pyrex dish to make meth."

    You don't get any points for taking this to comedic excess, because I already did that in the part you didn't choose to quote.

  • Finbar Sheehy||

    Strict liability is an abomination. It means the law is written with the intent of convicting literally innocent people.

  • Rossami||

    "What if the owner is known, but can't be prosecuted" - What James Pollock said.

    "What if the owner can't be convicted beyond a reasonable doubt" - Then they go free and they get to keep their property. That's what Due Process means. You don't get to steal their stuff just because you have a hunch about someone's motives.

  • susancol||

    "You don't get to steal their stuff just because you have a hunch about someone's motives."

    Nominated for Best Comment Ever.

  • James Pollock||

    "You don't get to steal their stuff just because you have a hunch about someone's motives."

    Eh? Qualified immunity, all around. Who can't do what now?

  • Armchair Lawyer||

    The "stuff" may have been proved to be in a crime, even if the person isn't.

    Let's do a case example. There's a case of cash in an active cocaine distribution warehouse, with "property of John Smith" on it. You can't "prove" beyond a reasonable doubt that John was distributing cocaine. But John tries to claim his cash. What do you do?

  • Finbar Sheehy||

    You give Smith his money unless you can prove he was involved. The presence of the case may have been entirely coincidental. The case may have been stolen from him. You don't actually know how it got there, or that he was culpable, even if you think you do. You need to prove it. Due process matters.

  • James Pollock||

    "The case may have been stolen from him."

    The case may have been stolen from him, empty at the time. Hypotheticals are fun.

  • Armchair Lawyer||

    The precedent actually goes back to naval law, under the British empire, where ships would be seized for smuggling, even if the owners weren't aware of the smuggling.

  • bevis the lumberjack||

    Interesting that Ginsburg indicated that way today, since (as was pointed out a couple of weeks ago) she was the swing vote that joined the conservative block and gave us expanded civil asset forfeiture to begin with. Perhaps she doesn't like how it has evolved since that decision was rendered.

  • Eddy||

    So, which rights in the Bill of Rights should be incorporated? Should there be any unincorporated rights left?

  • Bob from Ohio||

    "which rights in the Bill of Rights should be incorporated?"

    None but alas even "conservative" justices love the power it gives to federal courts.

  • bevis the lumberjack||

    Wait. Am I understanding you incorrectly? Are you saying that somebody in, say, Indiana shouldn't have the right of assembly, if Indiana decides that they shouldn't? Or that Alabama could do away with due process in criminal trials if they wanted to do so?

  • Bob from Ohio||

    The Bill of Rights only applies to the federal government. 60 years after the 14A, the courts decided it was magically "incorporated".

    The state constitution of Indiana no doubt has a right of assembly and the 14A text requires Alabama to provide due process.

    Incorporation was invented only a 100 years ago. Hoosiers peacefully assembled before that. Alabama's due process problems were not remedied by the doctrine but finanly people applying the 14A text.

  • Remember to keep it all polit||

    The 14th Amendment was pretty clear to both proponents and opponents while it was being debated, and still is in its plain language. Are you hiding behind the awful Slaughterhouse decision which gutted it?

  • Bob from Ohio||

    If Congress and the ratifying states had wanted to "incorporate" the Bil of Rights, it would have been easy to say "The rights contained in the Bill of Rights apply to the States" or something similar.

    That would be "plain language".

  • Brett Bellmore||

    They did say something similar: "Privileges and Immunities"

    The meaning of the phrase was discussed, it meant the rights of citizens, including but not limited to those listed in the Bill of Rights.

    Anyone who wants to can read the Congressional debates conce Rthe 14th amendment. It's meaning wasn't in doubt, the Slaughterhouse Court Just didn't like it.

  • NToJ||

    "Anyone who wants to can read the Congressional debates conce Rthe 14th amendment. It's meaning wasn't in doubt, the Slaughterhouse Court Just didn't like it."

    It's more complicated than that.

    "The clause of the Fourteenth Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article."

  • James Pollock||

    They went beyond rights to "all privileges". Not good enough?

  • Joe_dallas||

    A few points on incorporation

    Thomas' concurring opinion in McDonald incorporating the P&I clause is more appropropiate for incorporation

    The constitution is a contract between the federal government and the states. All provisions of a contract apply to all parties of a contract unless specifically excluded. Granted I am in the minority, but my believe is that there is incorporation at adoption of the 10 amendments. See Thomas' footnote in McDonald. His footnote implied incorporation at adoption of the BoA was supportable, but passed on further elaboration since, the court was incorporating under the due process clause.

    Stevens dissent in McDonald was dishonest (at best) since 14A clearly states "all laws"

  • great Unknown||

    If dishonest is at best, what is worse in a Justice?

  • JeffDG||

    Textually speaking, only the 1st Amendment is limited in its application to the federal government. The rest make no distinction between the federal and state governments.

  • gormadoc||

    What about the second amendment?

  • CJColucci||

    The theory of incorporation is a bit of a mess. Straight incorporation of the whole Bill of Rights will never fly because no one wants to saddle the states with the requirement of using the largely useless grand jury to commence criminal prosecutions or to require jury trials in small claims court. "Selective" incorporation is theoretically incoherent. The substantive due process-based vamping on "ordered liberty," see Palko v. Connecticut, avoids theoretical incoherence by not being a theory. Nevertheless, courts have stumbled and bumbled to more-or-less sensible results that approximate what the framers of the 14th amendment were trying to accomplish.

  • Eddy||

    "no one wants to saddle the states with the requirement of using the largely useless grand jury to commence criminal prosecutions"

    It sounds a bit much for the establishment to hobble the grand jury and tell them they only need to hear evidence from one side (the prosecution), then to triumphantly announce, "see? It's useless!"

  • James Pollock||

    The facts are clear... nearly every case presented to a grand jury results in a prosecution. You can interpret this in many ways. For example, maybe you figure that the people in the grand jury are so snowed by the prosecution that they can be counted on to rubber-stamp everything and anything. Or maybe the prosecutors take the grand jury requirement so seriously that they almost never bother the grand jury with anything that shouldn't be prosecuted.

  • Eddy||

    Yes, that latter possibility seems extremely plausible.

  • gormadoc||

    It's what happens with Japanese criminal prosecutions. They just drop cases that aren't certain wins.

  • Brett Bellmore||

    And make bad cases certain wins with coerced confessions.

  • gormadoc||

    If you're responding to me, that's not really the case in Japan. They have too few prosecutors so they just don't pursue bad cases, even if they were able to coerce confessions. They get paid the same and it's less hassle to just do easy cases. They have a significant backlog; it's not worth it to bother.

  • CJColucci||

    Some people think the grand jury is a tool of repression. Some think it is a rubber stamp. Some think it is used as political cover for prosecutors to tank cases they don't want to prosecute. Almost nobody now thinks, as the Framers did, that it actually stands between the power of state prosecutors and the accused. In about half the states, the use of a grand jury to initiate criminal prosecutions is optional. (Perry Mason was always arguing in preliminary hearings.) I'm not aware of anything indicating that residents of those states are in any greater danger from unchecked prosecutors than those that routinely use grand juries. That said, my state still uses grand juries. They may be useless, but there is little to be gained from disrupting the routines of prosecutors and defense lawyers, so there is no groundswell for getting rid of them here. But there is no judicial or political will to impose the grand jury on all states.

  • James Pollock||

    In my former state of Oregon, there was a case where the grand jury returned a "no bill" because they didn't think the act charged should have been prosecuted. However, neither the prosecutor NOR the defender noticed this, and the defender suggested the defendant take the plea deal offered, and the defendant did, and served the sentence. When it was in the news that he was about to get out, one of the grand jurors read about it and asked why the guy was in jail in the first place, which is when the defender sent "gee, sorry about that, you might want to pursue a malpractice case against me, here's my malpractice insurance information" letter... and the prosecutor then harassed the fellow extensively, trying to prove that even though the guy went to prison on technically no charges, they WOULD HAVE found something to put him in jail for, so he wasn't due any compensation for the time he spent in prison on technically no charges. As a result, the guy got damages from the prosecutor's office for sending him to prison on technically no charges, AND for malicious harassment as they tried to drum up some alternative charges they could have tried him on, even though there was no probable cause to believe there would be any.

    I believe this summary is correct... it's based on hazy memory of news reports.

  • loveconstitution1789||

    The Founders also warned us that apathy to government actions would be the end of the USA.

    The Grand Jury COULD be a check to prosecutorial power but many citizens simply dont challenge government, even when they have a powerful chance on a jury or Grand Jury.

  • JeffR24||

    Civil juries will likely be the last unincorporated right, forever.

  • BadLib||

    It may be joined with prohibiting quartering of soldiers in a time of piece without the owner's consent so it may not be the last one in the strictest sense.

  • SMP0328||

    The Third Amendment is incorporated in Connecticut, Vermont, and New York. Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).

    The Seventh Amendment has not been incorporated anywhere.

  • Joe_dallas||

    According to the analysis at ScotusBlog, Roberts' comments seem to appear that Roberts was as bothered with the lack of due process with asset forfieture nor with the excessive fine issue. Apparantly he only seemed concerned with whether it is incorporated against the states.

  • James Pollock||

    If it's NOT incorporated against the states, then the other issues don't matter, and there's no need to consider them.

  • James Pollock||

    The challenge is that they ever allowed the fiction that asset forfeiture isn't a proceeding against the person whose property is being taken, it's a proceeding against the property itself. If you allow this fiction to stand, it's hard to see how the 8th amendment can be applied. If they aren't prepared to discard this fiction, then you have the problem of seizing property for forfeiture where there is no conviction, or even sometimes no charges even filed against a person.

    Is it even possible to meet the (alleged) original purpose of asset forfeiture (making sure "crime doesn't pay" by seizing the proceeds even when the high hurdle of criminal conviction can't be reached) without allowing states and localities to abuse the power? I certainly have doubts, and unwinding civil asset forfeiture from local law enforcement is a challenge nearly as big as unwinding school segregation in 1954.

  • Brett Bellmore||

    If that's the or original purpose of civil forfeiture, then it's purpose was illegitimate from the start. People are entitled to be treated as inno By the government until convicted, period, end of the matter.

  • James Pollock||

    If you find that your stolen property is in my possession, but the cops can't prove I came by it illegally, is it your opinion that you get it back, or that I get to keep it?

  • Dalben||

    Returning stolen property isn't the same thing. If my property is stolen and you buy it at a pawn shop I don't have to show that you committed a crime to get it back. You might have obtained it perfectly innocently, but it's still my property.

    If the cops took the stolen goods by civil forfeiture, then they keep the goods, I never get them back.

    Plus, if you actually did steal them, possession of stolen goods is going to be pretty good evidence of a crime. Not incontrovertible evidence, but you'd better hope you kept your receipt from the pawnshop or that you can back up your claim that your friend gave it to you and you had no idea it was stolen, or whatever your explanation is.

  • James Pollock||

    " If my property is stolen and you buy it at a pawn shop I don't have to show that you committed a crime to get it back. You might have obtained it perfectly innocently, but it's still my property."

    Um, no, in the circumstance you describe, it's still MY property. You might want to review the UCC... as between original owner and a good faith purchaser for value, who has title to the goods?.

    "Plus, if you actually did steal them, possession of stolen goods is going to be pretty good evidence of a crime"

    Now you're trying to change the hypothetical, which was pretty clear... the cops can't prove I came by the goods illegally.

  • Voize of Reazon||

    in the circumstance you describe, it's still MY property. You might want to review the UCC

    Only, I believe, if the pawnbroker had acquired at least voidable title. How would that follow from the hypothetical?

  • James Pollock||

    "Only, I believe, if the pawnbroker had acquired at least voidable title."

    Or is a dealer in goods of the like.

  • Voize of Reazon||

    You may be thinking of § 2-403(2)

    Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.

    If you take your watch for repair to a jeweller who also sells watches, and she sells your watch, the buyer gets good title, but still only because the entruster (you) had rights to transfer.
    Interestingly this example fails for a second reason, the definition of "buyer in ordinary course of business" specifically excludes someone buying from a pawnbroker

    means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind.
  • James Pollock||

    "You may be thinking of § 2-403(2)"

    Close. 2-403(3).
    Which specifically refers to acquisition that was larcenous in nature.
    It's in the UCC specifically to cover cases where an agent's apparent authority exceeds actual, but it includes criminal disposition of goods, too, to allow the good faith purchaser for value to retain good title, and limit the recourse of the victim to the person(s) who engaged in criminal/tortious acts.

    The argument, if there is any, is whether a purchaser at a pawnbroker is on notice that goods may be stolen, which impairs their claim to be a good faith purchaser for value. But the hypothetical made me innocent, so innocent I remain, and I get to keep what I paid for.

  • Voize of Reazon||

    2-403(3) isn't independent, it defines "entrusting" as used in 2-403(2). It does not extend the rights transferred though, which are still limited to "all rights of the entruster". Rights the entruster does not have cannot be transferred, no matter how innocent the buyer.

    The definition of entrusting is very broad, including frauds that the law considers larcenous (a.k.a. "larceny by trick"), but that breadth refers to the circumstances of the entrusting, namely how the possessor induced the entruster to deliver the goods or how the possessor subsequently dealt with them, and not with the prior acquisition by the entruster. And so the buyer of your watch gets good title even if the jeweller had conned you into leaving the watch with her, but not if you had stolen the watch.

  • Armchair Lawyer||

    I think you need a slight reworking of how it works.

    It wasn't designed so "Crime doesn't pay"

    It was designed so that property that was used in a criminal enterprise could be seized, even if the owner was elsewhere.

    Originally it was applied to smuggling and ships. The owners may not be involved in the smuggling, but the ships they owned could still be seized if utilized for smuggling. And that's not necessarily a bad option.

  • James Pollock||

    "It wasn't designed so 'Crime doesn't pay'
    It was designed so that property that was used in a criminal enterprise could be seized, even if the owner was elsewhere."

    That's a somewhat circular argument. WHY was it designed so that property used in a criminal enterprise could be seized? Congress thought it needed more boats that could be used for smuggling, and didn't want to pay for them?

    Civil Asset Forfeiture was originally intended to seize the proceeds of organized crime from the crime bosses who made sure they were insulated from any crimes. That isn't the way it is practiced NOW, of course, because they made the mistake of letting law enforcement agencies pad their budgets with seizures.

  • JeffDG||

    It wasn't designed so "Crime doesn't pay"

    That makes sense for forfeiture of the proceeds of crime, not for the "instrumentalites".

    I can see seizure of proceeds under the nemo dat principle, ie. the criminal never held lawful title to something obtained as a result of the crime.

    But modern instrumentalities seizures are more about policing for profit.

  • OldCurmudgeon||

    The owners may not be involved in the smuggling, but the ships they owned could still be seized if utilized for smuggling. And that's not necessarily a bad option.

    If so, that seems grossly unjust... the owner looses a $25 million ship because one employee smuggles drugs into the country on a stop?

    I'm not sure how any ship owner could stop such actions without strip searching the sailors / harbor pilots each time they board.

  • Armchair Lawyer||

    It's an old law, and it was used somewhat more judiciously that that. It wasn't that one sailor was smuggling an ounce of pot.

    It was more that. A demonstrative case is United States v the Brig Malek Adhel (1844). Here, the Brig was being used for active piracy. The owners claimed no knowledge of the piracy. What should happen here?

  • James Pollock||

    " What should happen here?"

    Try the crew who were acting as pirates, as pirates. Assuming convictions, hang them. Attempt to prove that the owners were receiving proceeds. If successful, try them as pirates, as well. If not, return their ship to them as soon as they pay the impound fees.

  • RoyMo||

    This isn't the place for this really, but imagine a constitutional amendment abolishing legal fictions, it would effectively end civil forfeiture and plea bargaining as we know them.

  • James Pollock||

    Also corporations. I wouldn't hold my breath waiting for this one.

  • ||

    Mr Somin, do you think SCOTUS will explicitly say that Slaugherhouse is overturned? If not, what part of it survives? Are there cases where a past decision is 100% gutted, yet not explicitly overturned?

    We need someone to write eloquently about the downside of stare decisis. It undermines my respect for the law. I read it as, "No right, no principle, is so precious that it can't be sacrificed to a past mistake that we are bound to uphold."

  • James Pollock||

    People make decisions about how to order their lives and their businesses based on the law. If you state the principle that any law can be changed by a judge at any point, you invite chaos.

    The principle of stare decisis is that similar cases should be decided the same. If it was wrongful to do it (whatever it was) when X did it to Y, then it's also wrongful when B does it to C. Upsetting stare decisis means that if B has more pull, then even though they did the exact same thing as X, X gets convicted and B gets acquitted. Most of us reject that proposition.

    If that undermines your respect for the law, your respect isn't worth much.

  • Eddy||

    The Supreme Court's respect for precedent isn't worth very much:

    https://bit.ly/2FPHbh9

  • Eddy||

    And that was their record about 17 years ago.

  • Toranth||

    220 out of more than 30,000 isn't that inclined to overturn...

  • Eddy||

    These 220 involved such minor issues as the scope of the Commerce Clause, the applicability of the Bill of Rights to the States, and so forth.

  • James Pollock||

    "The Supreme Court's respect for precedent isn't worth very much"

    You're cherry picking. The Supreme Court is the only court that can ignore Supreme Court precedent. There's a slightly higher number of district courts, and they respect Supreme Court precedent just fine.

  • Eddy||

    Thank you for the useless and irrelevant red herring.

  • James Pollock||

    "Thank you for the useless and irrelevant red herring."

    Yes, that IS a shorter and more direct way of saying what I said.

  • Eddy||

    You reached into your vast storehouse of wit, and the best you could come up with was "I know you are, but what am I?"

    Sad.

  • James Pollock||

    "You reached into your vast storehouse of wit, and the best you could come up with was "I know you are, but what am I?""

    No, twit. I pointed out that YOU did. Try to keep up. Or, you know what... don't.

  • Eddy||

    Now that you've mastered "I know you are, but what am I?" you can now graduate to knock-knock jokes.

    Imbecile.

  • James Pollock||

    At least you're signing your comments accurately.

  • gormadoc||

    Why are mommy and daddy fighting?

  • James Pollock||

    "Why are mommy and daddy fighting?"

    The kids are brats.

  • MatthewSlyfield||

  • Brett Bellmore||

    In some cases more than others. Be nice if the Supreme court started taking 2nd amendment cases again, so that the lower courts would take Heller/McDonald seriously.

  • James Pollock||

    You're counting unhatched chickens. You may not like the results as much if they start taking up more cases again.

  • ||

    If patriots need to employ a Second Amendment remedy, it's better to know now.

  • James Pollock||

    Yes, better rush right down to the Wal-Mart and buy all the ammunition, before the feds get there. Pay extra if you have to.

  • ||

    I already have over 100,000 rounds of ammo. I think I'm good.

  • James Pollock||

    Only 100,000? Well, if you think that's plenty...

  • apedad||

    So what do you do with those?

    Did you building a little fort, like a Lego fort?

    Not sure what else they're good for. . .

  • James Pollock||

    Duh. Overthrowing tyranny. Also zombie apocalypse, and some folks think they'll need it after the nuclear war/civil war/anti-gay baker uprising.

  • apedad||

    I suppose in the universe of possibilities, zombie apocalypse is a possibility.

    I'm still going with Lego fort though.

  • ||

    If you read the Circuit Court decisions regarding gun rights, you don't see much respect. They apply a form of rational basis that they call intermediate scrutiny to any challenge. Of course, any action that interferes with the "right" of a woman to kill her fetus or a man to have gay buttsex must be analyzed through strict scrutiny. Such august rights, after all.

  • Alpheus W Drinkwater||

    Yawn

  • TheAmazingEmu||

    Slaughterhouse said that fundamental rights weren't incorporated through the Privileges or Immunities Clause. I doubt that'll be overturned because it's unnecessary with incorporation through Due Process and would raise issues anyway in that it would imply that the Bill of Rights didn't apply to non-citizens on US soil.

    Slaughterhouse also said that the right to pursue an economic activity wasn't a fundamental right incorporated against the states. I doubt that'll be overturned or, if it was, the courts will still say that legitimate police powers could be used to significantly curtail that right.

  • OldCurmudgeon||

    t would imply that the Bill of Rights didn't apply to non-citizens on US soil.

    Any idea what the origionalist consensus is on that point?

  • James Pollock||

    The Founders use "person" in the text, rather than "citizen". So all "persons" are entitled to due process before being deprived of life, liberty, or property (5A, 14A).

  • JeffDG||

    Slaughterhouse also said that the right to pursue an economic activity wasn't a fundamental right incorporated against the states. I doubt that'll be overturned or, if it was, the courts will still say that legitimate police powers could be used to significantly curtail that right.


    So overruling Slaughterhouse would be a back door to rehabilitating Lochner

  • QuantumBoxCat||

    I'll finally have the liberty to use my property in the execution of my criminal enterprise without the fear of it being seized as a consequence for my actions.

    Property rights and civil liberties for da win!

  • Hasdrubal||

    At this point, I'd say the net harm in allowing people to use their property to commit crimes without fear of the property being seized is lower than the net harm of government using civil asset forfeiture to seize property for profit without regard for the underlying crime.

    That's assuming that confiscating the _proceeds_ of crime isn't considered an excessive fine. But I think that's generally a process under criminal law and not civil asset forfeiture to begin with.

  • tkamenick||

    This case won't stop civil (or criminal) asset forfeiture, it'll just subject it to the test of whether it is excessive in relation to the wrongdoing.

  • JeffDG||

    What it might do is prevent some abuse. For example, if they try and convict you of something, and sentence you, then later bring an in rem forfieture action against you for something used in the crime. Since they would need to find that in rem actions are fines, then such a post hoc seizure would be, effectively, double jeopardy (in that you were being punished twice - original sentence, plus new fine) for the same offense.

    Also, consider the seizure of property that happens without charge or conviction? What is an excessive fine for someone who, legally, has not done anything wrong? A very strong argument could be made that ANY such fine would be grossly excessive.

  • James Pollock||

    "What is an excessive fine for someone who, legally, has not done anything wrong?"

    Forfeiture proceedings include a legal determination that the asset IS the product of a crime. There isn't a criminal conviction (to the burden of proof required) but there isn't "nothing", either. There certainly IS precedent that one can be criminally acquitted and yet civilly liable (because of the different burdens of proof). O.J. comes to mind for that proposition.

  • Brett Bellmore||

    "Forfeiture proceedings include a legal determination that the asset IS the product of a crime."

    If only.

    Generally speaking, you only get to the point of an actual legal determination if you contest the forfeiture, with often requires posting a freaking huge bond.

  • tkamenick||

    I'd lay odds on the Court finding that a forfeiture is punitive for purposes of the excessive fines clause (things that aren't punitive aren't fines) but not punitive for purposes of the double jeopardy clause.

  • James Pollock||

    "(things that aren't punitive aren't fines)"

    Restititution? Or are you claiming it isn't a fine because it goes to the victim, and not the state?

  • Brett Bellmore||

    Well, the law does distinguish between restitution and punishment in civil trials, doesn't it?

  • James Pollock||

    "the law does distinguish between restitution and punishment in civil trials, doesn't it?"

    In the sense that most civil trials have neither restitution nor punishment, that's kind of a hard claim to support.
    Most civil trials do not include any provision allowing for punitive damages, and none at all include a provision for restitution*.
    Criminal trials have restitution and many have fines as a possible punishment. Yes, punishment... although the POINT of restitution is not punishment, it IS a punishment in the sense that a court cannot order restitution without a conviction

  • ReaderY||

    There were two difficulties raised in oral argument:

    1. Timbs' crime is hardly a trivial one. It is a felony punishable by 20 years in prison, and Timbs got a 6-year suspended sentence. As Justice Alito pointed out, it would seem hard to argue that 20 years or even 6 years imprisonment is not unconstitutionally excessive, and yet a forty thousand dollar fine is. And if Timbs' fine isn't excessive - if, assuming the Excessive Fines Clause applies to the states, he still doesn't get any relief - then there would be no live case of controversy, and any Supreme Court opinion on the applicability of the Excessive Fines Clause would be advisory.

    2. There is a long history of precedents upholding in rem federal prosecutions for trivial offenses suggesting that these takings were never thought covered by the excessive fines clause until quite recent times. Indiana's counsel that the historical precedent represents the correct federal constitutional law, and the recent precedent represents liberal excess. At the very least, the long acceptance of in rem proceedings with no proportionality consideration by the federal judiciary (such as seizure of a ship for carrying 1 more passenger than the legal limit) suggests it lacks any deep roots in the nation's history and tradition, and should not be considered fundamental.

  • jph12||

    I disagree that there wouldn't be a live case or controversy if it turns out the fine is not excessive. A perfectly defensible order is to determine whether the excessive fines clause applies to the states, then turn to the question of whether the fine was excessive if it does. If they proceed in that fashion (and given that they are hearing the case, I bet that's the order they go in) then there's nothing advisory about their incorporation holding. Just likes courts considering qualified immunity cases are permitted to determine whether the government violated a right before determining whether the right was clearly established, even if most courts are too chickenshit to do so.

  • John Rohan||

    In regard to #1, there have been MUCH more egregious cases where there was no question to a reasonable person that the civil forfeiture was excessive. Why this more ambiguous case made it to SCOTUS, but none of those others, I will never understand.

  • James Pollock||

    "Why this more ambiguous case made it to SCOTUS, but none of those others, I will never understand."

    He could afford a lawyer to take it to appeal, would be my bet.

  • David Welker||

    The argument that the maximum $10,000 fine represents the correct baseline is rather weak. That fine might be excessive. Or it might not be the maximum fine that could be imposed by the legislature for the crime in question.

    We can presume without researching that no court has ever ruled that the $10,000 fine is the maximum fine, because no one would ever have an incentive to challenge their fine as being too low and it is not as though a higher fine was authorized by statute, and some court made them reduce the fine to this number. So, there is just nothing authoritative about this $10,000 baseline.

  • apedad||

    The "legal system" you so disparage reduced the verdict.

    "A Northern California groundskeeper said [in October 2018] that he will accept a judge's reduced verdict of $78 million against Monsanto after a jury found the company's weed killer caused his cancer."

  • Toranth||

    Are you seriously trying to defend a ignorant and corrupt judge and an absurd anti-science trial on the grounds that the fraudster was willing to accept only $80 million of the $250 million he demanded under false pretenses?

  • James Pollock||

    Anti-science?

  • James Pollock||

    OK. So?

  • James Pollock||

    Punitive damages awards are already limited. The case was State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). (Thanks, Google)

  • Smooth Like a Rhapsody||

    From the "Brush with greatness" file:
    I went to Law School with the author of the Indiana SC opinion.

  • Hasdrubal||

    What's the process for determining whether a fine is excessive under the Eighth Amendment? That would give me a baseline for interpreting how courts might determine whether an asset forfeiture is excessive.

  • John Rohan||

    Does anyone know what would happen if Timbs didn't hold the title to the car? Like if it was leased, or if he was making payments on it, for example. If he stopped making payments after it was impounded, then I assume the police would either have to resume the payments in his stead, or return the car to the bank. If so, then that's a powerful incentive for drug dealers not to buy any cars outright, that way it won't matter as much if they are seized.

  • jph12||

    There's typically an "innocent owner" defense that allows the actual owner to prove that they didn't know the car was being used for illicit purposes (it's not automatic). Police typically won't seize a car unless the value of the car exceeds the remaining payments--it's not called policing for profit for nothing.

  • James Pollock||

    A couple of decades ago, the local big city decided to crack down on street prostitution by seizing the cars of johns caught in prostitution stings. The bad publicity over the practice arose when someone noticed how often the car that was seized was actually the property of the wife of the guy driving down the prostitution stroll. Plus they got some work vehicles.

    I didn't pay much attention to it at the time, as I didn't have a law degree yet, nor an interest in picking up street prostitutes. Now I have one, but only one, of those two things.

  • tkamenick||

    A lot of asset forfeiture statutes DON'T have an innocent owner defense, which is one of the major due process concerns with them (but not at issue in this case).

  • TheAmazingEmu||

    The biggest issue I seem to run into if the distinction is whether the fine is "punitive" is it would potentially suggest the Eighth Amendment is less likely to apply when it's being directed towards the innocent property owner whose property was used to facilitate a crime without their knowledge. Obviously, that individual didn't do anything to be punished and the person who committed the offense isn't really being punished by the seizure of the property either. But the property itself is the one that's considered "guilty."

    it seems Justice Thomas's opinion last year is the better dividing line because it recognizes the types of asset forfeiture under the common law versus what's allowed today. But, as far as a Constitutional limitation against the states, I'm not sure if that's best grounded in the Eighth Amendment or the Fourteenth.

  • James Pollock||

    "The biggest issue I seem to run into if the distinction is whether the fine is "punitive" is it would potentially suggest the Eighth Amendment is less likely to apply when it's being directed towards the innocent property owner whose property was used to facilitate a crime without their knowledge."

    In theory, any fine at all is "excessive" if levied against a person who is innocent of wrongdoing. But since the defendant is the property, not the property owner, the question is whether or not the PROPERTY is guilty or innocent, and that is a different question. That bit of reasoning was the camel's nose in the tent.

    The Eighth amendment, standing alone, does not limit the states' authority.
    In the original formulation of federalism, the power of the states was seen as the bulwark of defending the individual against invasion of his rights by the federal government. But it turned out that the state was more likely to encroach, so the 14th amendment reverses the arrangement, and the federal government becomes the defender of liberty against encroachment by the states.

    Some states have acted to limit asset forfeiture. So localities partner with the federal government to do it anyway. You probably need a Constitutional amendment to stamp out the practice for good, and I don't see 38 states signing on, even if you could get it through Congress.

  • SMP0328||

    Such a proposed amendment would likely be sent to State conventions, rather than State legislatures, for ratification. This would effectively allow the People to vote on the proposal. It's how the 21st Amendment (repealing the 18th Amendment and ending Prohibition) was adopted.

  • James Pollock||

    I don't think ending civil forfeiture is on the radar quite so much as ending Prohibition was. I still don't see 38 states rushing to ratify.

  • Brett Bellmore||

    A civil forfeiture amendment would probably not be ratified by state legislatures, because it would attack their own power. I think it would be ratified by state conventions, because the people of the state are the people who would be subject to that forfeiture.

  • MatthewSlyfield||

    Except the average "law abiding" citizens do not see themselves as potential victims of civil forfeiture.

  • OldCurmudgeon||

    OTOH, state legislatures did ratify other amendments that limited their power e.g., direct election of Senators.

  • Onslow||

    Super unfortunate. Most States have their own "excessive fines" clause or protections. As admitted during oral argument: what is excessive or a fine is fact-intensive, perhaps state and community specific inquiry. SCOTUS should not plant the flag of the federal judiciary as the final arbiter of excessive fine protections in state prosecutions. Of course, once the flag is planted, federal determinations would be the baseline--or floor--of protection against excessive fines, but that floor is best left to the states.

    With that said, I have significant problems with government permanently seizing assets unless the assets are sold/paid to victims of the crime commissioned.

  • bernard11||

    As Justices Gorsuch and Sonia Sotomayor pointed out, modern civil asset forfeitures have a massive punitive component, which cannot be eliminated simply by labeling them as "in rem" proceedings. Similarly, Justice Ruth Bader Ginsburg emphasized that "whether you label it in rem or in personam, let's remember that .. things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things."

    Amazing that this issue has to get to the Supreme Court before the law can see what is obvious to an average twelve-year-old.

  • loveconstitution1789||

    +1000

  • OldCurmudgeon||

    Is there any chance the infamous "seizing police department gets to keep the money" incentive will get implicated in the due process analysis? Imho, that issue even touches old-fashioned procedural due process.

  • ||

    Wonkette has a fairly good article on this case which is also snarky and funny.

    https://www.wonkette.com

  • ReaderY||

    Indiana raised a third difficulty.

    Austin held that the purpose of the 8th amendment is to constrain government'a power to punish. To fall within its scope, a forfeiture must be punitive in character. It then held that the federal civil forfeiture law was sufficiently punitive in nature to be a fine subject to the 8th Amendment.

    No problem, said the Indiana Attorney General. We simply modify our law to remove any punitive nexus. No innocent owner defense, no concept of negligence, nothing.

    Under this view, if for example a car used by a carjacker to run over its owner remains just as subject to forfeiture (as an instrument of the crime of assault) as if it was the owner doing the running over, the in rem forfeiture law would be clearly non-punitive, the 8th Amendment would therefore clearly not apply, and there'd be no constitutional problem. The justices might or might not think such a result more just. But if Due Process requires it, Indiana can simply conform.

    Although a hypothetical of this nature wasn't really before the court, and Indiana's AG might find a law of this nature not as easy to implement politically as he proposed, nonetheless I don't think this argument was ever really addressed. I didn't see any real effort by either Justices or Timbs' lawyer to refute it.

  • James Pollock||

    " I don't think this argument was ever really addressed."

    It's a fairly simple argument to make. Proceeding against the property instead of against the owner is a sham. The law ought to consider things as they are, not as they pretend to be. Whether the proceeding is formally against the property or against the owner, the intent is to deprive the owner of possession. The fifth amendment demands due process but doesn't specify what process is due. Civil Asset Forfeiture uses the rules of civil procedure, meaning lowered burden of proof for the government compared to criminal court, but this doesn't free the government from all Constitutional concerns.

    The weakness of this argument is that the law does allow some legal fictions to stand... corporations, notably. So, although the general principle is that the law deals with the real instead of the pretend, sometimes it doesn't and you don't have a bright-line rule for when you do and when you don't, other that the whim of the court.

  • ReaderY||

    But isn't this an argument for overruling Austin, simply in the other direction? Austin held that a forfeiture law must have a punitive element to be a fine subject to the 8th Amendment. So under Austin, a forfeiture law excised of all punitive elements would be 8th Amendment proof.

    Austin both declared a punitive element necessary and went through the forfeiture laws involved to identify the specific elements that made it punitive. It said only some forfeitures are subject to the 8th Amendment.

    So if you want to say every forfeiture is subject to the 8th amendment as "inherently punitive" whether an express punitive amendment is identifiable or not, you've departed from Austin and entered new territory. You've overruled Austin.

    There might be an argument for overruling Austin. But one thing he got from the Justices was agreement, a concession that they had no interest in doing so.

    I initially thought that Indiana's AG didn't present himself very well. But a lawyer who manages to obtain a concession from a court when the questions and confessions are nominally supposed to be going only in the reverse direction has done pretty well. And unless Austin is overruled, it seems to me your position falls under it.

  • ReaderY||

    That is, Austin accepted forfeiture as going against the property except when there are elements saying it really goes against the person. You have to overrule Austin to get to a position that going against property is nothing but a legal fiction with no constitutional substance. Doing so goes against, not just Austin, but a great deal of other Supreme Court precedent as well, for example (as you note) its jurisprudence on corporations.

  • Brett Bellmore||

    I think about the only cases where forfeiture wouldn't be inherently punitive is where the owner of the property forfeited couldn't be identified. Forfeiture of abandoned property, basically. If you know whose property it is, and you take it, that's punitive, because you're depriving the owner of their property.

  • James Pollock||

    Even if you don't know whose property it is, Brett, if you take it, you're depriving the owner of their property. You have to get to "property which has no owner" to avoid that conundrum. A volcano erupts off the coast of Hawaii, breaches the surface, spreads a bunch of lava around piled high enough to be dry even at high tide. THAT property you can take without depriving the owner of their property.

  • James Pollock||

    "You've overruled Austin."

    I haven't done anything of the sort. I responded to a general request for an argument, by providing an argument. Then I went beyond, and pointed out that it has flaws, possibly fatal, possibly not... but easy to spot.

  • Brett Bellmore||

    it's not bad enough that Civil forfeiture uses civil procedure for what is honestly a criminal punishment. Worse, they'll typically require you to post a rather large bond in order to even contest the forfeiture, so in most cases there won't actually be even a civil trial.

  • loveconstitution1789||

    Yup.

    The govenrment's intent is to steal your assets. All efforts to recover the theft will also cost you to discourage people from trying to recover.

  • jph12||

    "Although a hypothetical of this nature wasn't really before the court, and Indiana's AG might find a law of this nature not as easy to implement politically as he proposed, nonetheless I don't think this argument was ever really addressed. I didn't see any real effort by either Justices or Timbs' lawyer to refute it."

    Why refute it? Yes, completely different laws can raise completely different legal issues. Perhaps its true that your proposed forfeiture law, if actually implemented and enforced uniformly, wouldn't be punitive and wouldn't raise excessive fines issues. So what? Not every stupid law is unconstitutional. Sometimes the defense against stupid laws has to be left to the legislature.

  • MatthewSlyfield||

    "Sometimes the defense against stupid laws has to be left to the legislature."

    The same legislature that is the source of every stupid law in existence?

  • James Pollock||

    "The same legislature that is the source of every stupid law in existence?"

    You, clearly, do not live in a state that allows initiative petitions.

  • jph12||

    "The same legislature that is the source of every stupid law in existence?"

    I'm pretty sure the blame for stupid laws is spread around multiple legislatures, but generally yes. There's a reason the saying is that "not every stupid law is unconstitutional." Sometimes stupid laws get passed.

  • James Pollock||

    Some stupid laws are more stupid than other stupid laws.

  • BrotherMovesOn||

    Just this week watched Pink House. Not A Civil Action but decent legal movie fare.
    Catherine Keener is usually good.

  • BruceNYC||

    Well, it seems to me that if the legislature has decided that $10K is the maximum fine, then anything above that is excessive. And I see no reason why a fine in cash should be different in property simply because its not cash. All property being seized is easily converted to cash through a sale, and actually is converted to cash in virtually all cases.

  • ReaderY||

    The legislature set the maximum punishment at 20 years of a person's time plus $10,000. If people's time is completely valueless to them, as your calculation indicates, why would the 8th Amendment ever apply to a prison term (surely taking something of no value can never be excessive)

    If people's time is given any reasonable valuation, then the car wad worth a lot less than the maximum punishment taking into account the value of the prison time.

  • James Pollock||

    The point made above is valid... $10,000 is just a number pulled out of the collective legislative ass. Perhaps, had the number been $100,000 instead of $10,000, the bill still would have passed. Maybe $10K is way to high, and a fine greater than $10 is "excessive."

    Valuation is a VERY tricky field of law (with specialists) who will concede that their answers to the exact same question can vary from day to day.

    Suppose I get convicted of robbery because I take, by force but not by violence, candy from a baby. A candy bar costs about a buck at the grocery store. Is a fine of $10K excessive? I mean, it's a felony, but it's still a candy bar. What if I fill in more details of the crime... it was a parade, the fire brigade was tossing candy to children along the parade route, and I pushed aside a child who was trying to take candy that landed in my kid's lap, and I had a really bad defense lawyer who decided not to raise a "defense of self and others" defense because I'm a lot bigger than a 3-year-old. If you think $10K as a fine for that is too high, what if the judge sets the fine at $5K instead, only HALF the max?

  • James Pollock||

    Do we use the "abuse of discretion" standard to decide that a fine (or a forfeiture) is excessive? How about the State Farm v. Campbell standard... start with the actual damages, and then look at the multiplier (yes, I know... forfeiture and punitive damages are different animals).

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