By Nathaniel Truitt, Editor In Chief
The Supreme Court recently decided a case which granted criminal defendants new constitutional guarantees, and these new guarantees will impact how police deter crime. That case is Timbs v. Indiana, and the primary issue was whether states should be subject to the Excessive Fines Clause. [1] Because the Bill of Rights was adopted to protect against federal overreach, its guarantees did not initially restrict state activity.[2] This changed, however, following the adoption of the post-Civil War amendments – in particular, the Fourteenth Amendment. [3] Since the 1940s, the Court has incorporated particular Bill of Rights guarantees through the Fourteenth Amendment’s Due Process Clause, thus making them applicable to the states.[4] Most Bill of Rights guarantees have long been incorporated, but five of them had yet to be incorporated prior to Timbs v. Indiana.[5] Now, only four rights remain unincorporated because the Court unanimously held that the Excessive Fines Clause fully applies to the states.[6]
The Eighth Amendment’s Excessive Fines Clause exists with two parallel provisions that similarly restrict the government’s ability to punish wrongdoers. The Eighth Amendment trifecta provides that individuals should be free of excessive bail, excessive fines, and cruel and unusual punishments.[7] Protections against excessive fines can be traced back to 1215 and the Magna Carta.[8] Despite the Magna Carta’s protections, exorbitant fines were imposed during the Seventeenth Century because some English judges held that the “Magna Carta did not apply to fines for offenses against the Crown.”[9] And predictably, English courts used this latitude to impose excessive fines against political enemies.[10] The Glorious Revolution finally brought an end to this abuse as the House of Commons drafted “articles concerning essential law and liberties” – the English Bill of Rights.[11]
It is against this backdrop that the Framers included the right to be free from excessive fines within our Constitution.[12] As Justice Story noted, the Eighth Amendment “is an exact transcript of [the] clause in the [English] bill of rights, framed at the [Glorious Revolution].”[13] Not only was protection against excessive fines important on a national level, but in 1791, ten of the fourteen states, comprising seventy-eight percent of the population, had constitutional provisions prohibiting excessive fines.[14] More importantly, this right has retained its significance in the American system of justice.[15] Today, forty-seven state constitutions have explicit protections against excessive fines.[16]
In light of this history, incorporation of the Excessive Fines Clause was uncontroversial, as perhaps evidenced by the Court’s unanimous decision to do so.[17] Generally, the Supreme Court incorporates a right if it finds that the right is “fundamental to the [American] scheme of ordered liberty…or deeply rooted in this Nation’s history and tradition.”[18] As the Court in Timbs v. Indiana noted, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.”[19]
Even though incorporation of the Excessive Fines Clause was expected and hardly contested, its potential effect is much more controversial because it may diminish an integral tool for police to dismantle drug enterprises – in rem forfeitures. In rem forfeitures are a legal fiction whereby the government pursues a separate legal action against the property used in a crime – as though the instrument of the crime is independently guilty.[20] Incorporation of the Excessive Fines Clause potentially limits this crime-deterrent tool because in Austin v. United States, the Supreme Court held that the Excessive Fines Clause also applies to federal in rem forfeiture actions, so long as the forfeiture is at least partially punitive.[21] The Austin Court reasoned that the purpose of the Eighth Amendment “was to limit the government’s power to punish,” and that the “Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.”[22] Accordingly, if an in rem forfeiture is at least partly punitive, it constitutes a fine and is subject to the Excessive Fines Clause.[23]
Including in rem forfeitures into Excessive Fines Clause jurisprudence is somewhat ironic because this country has a storied history of seizing property through forfeiture actions, and those forfeitures have at times been grossly excessive. As an example, an 1819 statute permitted the forfeiture of a four-hundred-ton ship because the ship had 178 passengers – one above the legal limit.[24] Today, in rem forfeitures are used extensively by law enforcement to dismantle criminal enterprises by taking the illicit monetary gains and the personal and real property used in the criminal enterprise.[25] The effectiveness of in rem forfeitures as a crime-deterrent tool comes from their severity. Where police may only be able to catch a sophisticated narcotics enterprise in a few of its many illegal transactions, the ability to forfeit the criminal instrumentalities helps police more effectively dismantle the entire operation. If a criminal enterprise is operated out of a building, distributed by vehicles, and in possession of a boatload of cash from its sales, police could potentially confiscate all of these assets for even a few illicit transactions.
But of course, every effective policing tool carries with it an inherent risk of governmental abuse. As Justice Scalia noted, “[t]here is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribution and deterrence.”[26] The reason is simple – “fines are a source of revenue.”[27] Like every other policing tool, constitutional rights must not be forgotten in the pursuit of deterring crime. Timbs v. Indiana provides a good example of how this decision might impact drug prosecutions – for good or bad. Tyson Timbs, an Indiana resident, used life-insurance proceeds from his father’s death to purchase a Land Rover for $42,000, and he subsequently used the vehicle to transport and sell heroin.[28] Timbs pled guilty to felony charges, as part of his sentencing, and was ordered to pay fines totaling $1,203.[29] Indiana also filed a forfeiture action against the Land Rover, but the trial court denied the State’s request, reasoning that the forfeiture would be grossly disproportionate to the gravity of the offense.[30] The maximum statutory fine was $10,000, and the Land Rover was worth approximately four times that amount.[31]
Now that the Supreme Court has incorporated the Excessive Fines Clause, this type of analysis will be required in every state forfeiture case. How that affects the ability of police to combat criminal organizations remains to be seen, but it will certainly have an impact. Alternatively, it seems plausible that some courts will begin using different metrics by which to determine disproportionality – something to which Justice Alito seemed to allude during oral argument for Timbs v. Indiana.[32] As Justice Alito noted, the maximum imprisonment for Timbs’s offense was twenty years imprisonment, and by that comparison, is forfeiture of a $42,000 Land Rover Excessive?[33] Courts will have this and many other questions to determine as states must now follow the Supreme Court’s Excessive Fines Clause jurisprudence.
[1] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019).
[2] Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243, 247 (1833).
[3] McDonald v. Chicago, 561 U.S. 742, 754 (2010).
[4] Id. at 764 n.12.
[5] See, e.g., id. at 765 n.13.
[6] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019).
[7] U.S. Const. amend. VIII.
[8] Timbs, 139 S. Ct. at 687.
[9] Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 290 (1989) (O’Connor, J., concurring in part and dissenting in part).
[10] Id.
[11] Id.
[12] See Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 663 (1996) (stating that the Magna Carta and the English Bill of Rights “stood…as a towering common law lighthouse of liberty--a beacon by which framing lawyers in America consciously steered their course”)
[13] Joseph Story, Commentaries on the Constitution of the United States 710-11 (1833 ed.)
[14] See Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition?, 85 S. Cal. L. Rev. 1451, 1517–18 (2012).
[15] See Timbs v. Indiana, 139 S. Ct. 683, 689 (2019) (stating that “the protection against excessive fines has been a constant shield throughout Anglo-American history…”).
[16] Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. L.Q. 833, 877 (2013).
[17] See id. at 689 (stating that “[t]oday, acknowledgment of the right’s fundamental nature remains widespread”).
[18] McDonald v. Chicago, 561 U.S. 742, 767 (2010) (internal quotation marks omitted).
[19] Timbs, 139 S. Ct. at 689.
[20] See Various Items of Pers. Prop. v. United States, 282 U.S. 577, 581 (1931) (stating that when the forfeiture action is in rem, it “is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient”).
[21] Austin v. United States, 509 U.S. 602, 622 (1993).
[22] Id. at 609-10 (internal quotation marks omitted).
[23] Id. at 622.
[24] United States v. The Louisa Barbara, 26 F. Cas. 1000, 1001 (E.D. Pa. 1833).
[25] Alice W. Dery, Overview of Asset Forfeiture, Bus. L. Today (June 21, 2012), http://apps.americanbar.org/buslaw/blt/content/2012/06/article-02-dery.shtml.
[26] Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)
[27] Id.
[28] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019)
[29] Id.
[30] See State v. Timbs, 62 N.E.3d 472, 476-77 (Ind. Ct. App. 2016) (affirming the trial court’s judgment that the forfeiture was “grossly disproportional”) overruled by State v. Timbs, 84 N.E.3d 1179, 1183 (2017).
[31] Timbs v. Indiana, 139 S. Ct. 683, 686 (2019).
[32] Transcript of Oral Argument at 9-10, Timbs v. Indiana, 139 S. Ct. 683 (No. 17-1091) (questioning whether forfeiture of the Land Rover is unconstitutional considering the maximum imprisonment for Timb’s offense).
[33] Id.