On February 20, 2019 in the case of Timbs v. Indiana, 2019 U.S. LEXIS 1350 (Feb. 20, 2019), the United States Supreme Court held that the Eighth Amendment’s Excessive Fines Clause was “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” The Court concluded that the Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. This means that the Clause prohibiting excessive fines is extended to the States, including in civil forfeiture circumstances.
Background
Tyson Timbs was arrested, and two years later pled guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203.
Timbs had bought a Land Rover SUV for $42,000 with money he received from an insurance policy after his father’s death. At the time of Timbs’ arrest, police had seized his SUV. The State of Indiana sought civil forfeiture of the SUV, arguing that it had been used to transport heroin. After Timbs pled guilty, the trial court held a hearing on the forfeiture demand.
The trial court denied the State’s request, observing that Timbs had recently purchased the vehicle for more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. The trial court determined that forfeiture of the Land Rover would be grossly disproportionate to the gravity of Timbs’ offense, and thus unconstitutional under the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.
The Court of Appeals of Indiana affirmed the trial court’s determination, but the Indiana Supreme Court reversed, holding that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. The Supreme Court of the United States granted certiorari to review.
Discussion
The United States Supreme Court explained as an initial matter that the Bill of Rights originally applied only to the Federal Government when the Bill of Rights was ratified in 1791. After the Civil War, the Fourteenth Amendment and other postwar amendments “‘fundamentally altered our country’s federal system.’” McDonald v. Chicago, 561 U. S. 742, 754. The Court observed that “[w]ith only ‘a handful’ of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.” Id., at 764-765. The Court explained that “[a] Bill of Rights protection is incorporated … if it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’ Id., at 767[].” If a Bill of Rights protection is incorporated, the Court added, the protection is enforced against the States under the Fourteenth Amendment with “no daylight between the federal and state conduct [the incorporated Bill of Rights protection] prohibits or requires.”
The Eighth Amendment, one of the ten amendments in the Bill of Rights, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Court explained that, like the prohibitions of cruel and unusual punishment and excessive bail, the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. Here, the Supreme Court granted certiorari to consider the question: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Resolving the question required a determination whether the protection against excessive fines was “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”
Historical Review
The Court discussed the “venerable lineage” of the Excessive Fines Clause, tracing its roots back to the Magna Carta in 1215. The Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 271 (1989). The Court noted that laws prohibiting excessive fines continued in colonial and early American law. As Justice Thomas noted in his concurring opinion (citing Browning-Ferris Industries of Vt., Inc.), the text of the Eighth Amendment was based directly on the Virginia Declaration of Rights, which “adopted verbatim the language of the English Bill of Rights.”
The Supreme Court noted that in 1787, the constitutions of eight States (which encompassed 70% of the U. S. population at the time) prohibited excessive fines. By the ratification of the Fourteenth Amendment in 1868, the constitutions of 35 of the 37 States expressly prohibited excessive fines. The Court explained that despite these laws, excessive fine abuses persisted in America even after the civil war. The Court observed that today all 50 states, including Indiana, have a constitutional provision barring the imposition of excessive fines either directly or by requiring proportionality.
As such, the Court had found the historical case for the Clause’s incorporation compelling. The Supreme Court additionally explained that excessive fines undermine other liberties because they can be used to retaliate against or chill the speech of political enemies, or as a source of revenue instead of furthering penal goals of retribution or deterrence. The Court therefore, determined that the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause was “overwhelming.”
Rejecting State of Indiana’s Arguments
Indiana argued that the Excessive Fines Clause did not apply to its use of civil in rem forfeitures, but the Supreme Court explained that it had previously held in Austin v. United States, 509 U. S. 602, that such forfeitures fall within the Clause’s protection when they are at least partially punitive. Accordingly, Indiana could not prevail unless the Court here overruled Austin or held that, in light of Austin, the Excessive Fines Clause is not incorporated by the Due Process Clause because its application to civil in rem forfeitures is neither fundamental nor deeply rooted.
The Court found that overturning Austin was not properly before the Court because the Indiana Supreme Court held only that the Excessive Fines Clause did not apply to the States and did not address the Clause’s application to civil in rem forfeitures. Nor did the State ask the Indiana Supreme Court to do so. Here, the Supreme Court explained that Indiana tried to reformulate the question to ask whether the Clause restricted States’ use of civil in rem forfeitures and argued on the merits that Austin was wrongly decided. However, the Court reminded that it was a court of review, not of first view, and that the Indiana’s reformulated question was not one passed by the Indiana Supreme Court to the United States Supreme Court.
As for Indiana’s second argument, the Court explained that Indiana’s proposition that the Excessive Fines Clause could not be incorporated if it applied to civil in rem forfeitures, “misapprehend[ed] the nature of the incorporation inquiry.” The Court explained that, in considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, “we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.” Here, the Court had concluded that, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures was itself fundamental or deeply rooted, the Clause itself was incorporated, and applicable to the States.
Accordingly, the United States Supreme Court vacated the judgment of the Indiana Supreme Court and remanded for additional proceedings.
HOW THIS AFFECTS YOUR AGENCY
The Supreme Court here was rather forceful in its unanimous opinion that the Excessive Fines Clause of the Eighth Amendment is incorporated by the Due Process Clause. Concurring opinions reinforced the holding. The scale of the impacts remains to be seen, but it is probable that the impacts will be significant on Agencies’ processes pertaining to civil forfeiture cases. Agencies will likely face legal challenges regarding seized property and face arguments that the seizure was not “proportional” to the crime to ensure an intended seizure would not constitute an “excessive” fine. Accordingly, Agencies will likely also see an impact on efforts to curb drug-related criminal activities to the extent that forfeiture has been used as a tool to combat these activities.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.
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