Cruel and Unusual Payment: The Supreme Court Incorporates the Excessive Fines Clause of the Eighth Amendment to the Fifty States in Timbs v. Indiana.

*Emily Schreiber

On Wednesday, February 20, 2019, Justice Ruth Bader Ginsburg announced the unanimous judgment of the Supreme Court in Timbs v. Indiana: the Excessive Fines Clause of the Eighth Amendment of the United States Constitution applies to the states through the Due Process Clause of the Fourteenth Amendment.  Timbs v. Indiana, 139 S. Ct. 682, 687 (2019).  Timbs “pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft.”  Id. at 686.  His sentence included one year of home detention, five years of probation, and costs and fees of $1,203.  Id.  When Timbs was arrested, law enforcement seized his Land Rover vehicle, which Timbs had purchased with money from his deceased father’s life insurance policy.  Id.  The state of Indiana hired a private law firm to bring a civil suit for forfeiture, given law enforcement’s belief that Timbs used the vehicle to transport heroin.  Id.  Despite the trial court’s finding that the vehicle was used to transport heroin, in violation of criminal law, the request for forfeiture was denied, as “Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drugs conviction.”  Id.  Though the Court of Appeals of Indiana affirmed the trial court’s decision, the Indiana Supreme Court reversed, finding “that the Excessive Fines Clause constrains only federal actions and is inapplicable to state impositions.”  Id.  Thus, the Supreme Court of the United States ultimately granted certiorari to decide the issue of whether the Eighth Amendment’s clause could properly be applied to the states.  See id.

Asset forfeiture is a process utilized at both the state and federal level, permitting law enforcement to “seize and forfeit cash, property[,] and other materials they believe are associated with illegal activity.”  Anne Teigen & Lucia Bragg, Evolving Civil Asset Forfeiture Laws, Nat’l Conf. of St. Legis. (Feb. 2018),  The forfeiture can be pursued following a criminal conviction, or in a civil action against the property of an individual “suspected of being involved in criminal activity.”  Id.  Forty-seven out of the fifty states have statutes regarding civil asset forfeiture.  See id.  Three states, New Mexico, Nebraska, and North Carolina, have abolished the practice.  Id.  Of the forty-seven states allowing asset forfeiture, only eleven have the explicit requirement of a criminal conviction.  Id.  Even in this context, however, three of those eleven states allow for the seizure of property below a certain value without the prerequisite of a criminal conviction.  Id.  Therefore, many states allow for the seizure and forfeiture of property without the individual actually having been found guilty of criminal activity, beyond a reasonable doubt, in a criminal court.  See id. 

This leads to the question: what is the standard of proof for a person suspected of criminal activity to have their property seized and ultimately forfeited?  In a majority of the states, the standard is a mere preponderance of the evidence, as one would expect in a typical civil case.  See id.  States such as Arizona, Iowa, and Virginia, however, have increased the burden of proof to clear and convincing evidence, making the right to seize the property more difficult to prove.  Id.  While those who support the forfeiture process cite to its ability to “defund organized crime, prevent new crimes from being committed and weaken criminal cartels[,]” critics point to the potential for abuse in a variety of contexts—from compelling those never involved in a crime to forfeit property, to incentivizing seizures in order to promote funding.  Id.  While there are undoubtedly strong policy arguments on both sides, the Supreme Court shed new light on the issue through a constitutional lens in the Timbs decision.  See generally Timbs v. Indiana, 139 S. Ct. 682 (2019).

The Court proceeded through its analysis by first looking at the incorporation of the Bill of Rights to the states at its ratification.  Id. at 687.   Originally, the Bill of Rights applied only to the federal government.  Id.  The Court stated, however, that a protection found in the Bill of Rights will be applied to the states through the Due Process Clause of the Fourteenth Amendment when “it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’”  Id. (quoting McDonald v. Chicago, 561 U.S. 742, 767 (2010)).  Applying this framework to the Excessive Fines Clause of the Eighth Amendment, the Court found that safeguards against excessive fines could be traced all the way back to the Magna Carta.  Id. at 687.  The issue continued to appear through the English Bill of Rights, the Virginia Declaration of Rights, and various colonial documents.  Id. at 688.  In 1787, a provision against excessive fines was contained in the constitutions of eight different states, and by 1868, thirty-five out of the then thirty-seven states explicitly banned excessive fines.  Id.  Today, “all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality.”  Id. at 689.  Therefore, the Court concluded, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.”  Id.

While Indiana did not largely dispute the proper incorporation of the Excessive Fines Clause to the states, the state argued that the clause did not apply to this type of forfeiture.  Id.  The Court did not agree with this argument, citing Austin v. United States, a case where the Court held that the Excessive Fines Clause applies to civil in rem forfeitures “when they are at least partially punitive.”  Id. (citing Austin v. United States, 509 U.S. 602, 622 (1993)).  Though Indiana argued that Austin should be overturned, the Court declined to consider this, as Timbs sought review of the Indiana Supreme Court’s ruling that, as a matter of incorporation, the Excessive Fines Clause did not apply to the states; therefore, the issue of whether the clause applied to the category of civil in rem forfeitures was not properly before the Court.  Id. at 690.  The Court also rejected the argument that the Excessive Fines Clause could not be incorporated to the states if related to forfeiture, because “[i]n 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.”  Id.  Thus, the Court vacated the judgment of the Indiana Supreme Court and remanded the case.  Id. 

In light of the Supreme Court decision, some have rejoiced, deeming the opinion “an extraordinary blow for criminal justice reform . . . placing real limitations on policing for profit across the country.”  Mark Joseph Stern, The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit, Slate (Feb. 20, 2019, 1:40 PM),  Others have taken a more ambivalent approach, recognizing, for example, that the Eighth Amendment has applied to federal civil asset forfeiture for quite some time now; despite this, the federal government has still been able to seize $36.5 billion in assets since its application.  Scott Lemieux, Police Abused Civil Forfeiture Laws for So Long that the Supreme Court Stepped In.  But One Ruling Won’t End It., NBC News (Feb. 21, 2019, 1:08 PM EST),  Moreover, the holding of the Supreme Court was narrow, such that Indiana could arguably raise the maximum fine for its drug offenses, making “the court’s holding . . . ineffectual going forward.”  Id.  Thus, some suggest that real change would emerge by eliminating the ability to seize and have property forfeited from those not found guilty of a crime beyond a reasonable doubt.  Id.  Perhaps only time will tell what the true ramifications of the Court’s decision will be; however, what is known is that states must be more judicious in determining what to seize and who to seize it from to avoid subjecting citizens to what may be deemed cruel and unusual payment.

*Emily Schreiber is a third-year law student at the University of Baltimore School of Law, where she is a Senior Staff Editor for Law Review, as well as a Royal Graham Shannonhouse III Distinguished Scholar.  Emily is a law clerk at the Baltimore County State’s Attorney’s Office.

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