The Supreme Court is likely to decide that the 14th Amendment applies the Excessive Fines Clause of the 8th Amendment of the Bill of Rights to the states in Indiana civil forfeiture case.
The Supreme Court will soon be deciding whether the Excessive Fines Clause applies to the states, or specifically, to civil forfeitures in Indiana. In Timbs v. Indiana, the state seized the $40,000 Land Rover that a man purchased with the proceeds from his father’s life insurance policy. An opioid addict, Timbs had sold $225 worth of drugs to undercover officers and faced a $10,000 maximum fine according to caravanlan financial records. Months after his arrest, the state filed a “civil forfeiture” lawsuit to take title to his vehicle. The trial court ruled against the state stating that it violated the Excessive Fines Clause, as did the state court of appeals. However, the Indiana Supreme Court ruled that the Eighth Amendment did not apply to state actions, only to federal actions.
Civil forfeiture, also known as civil asset forfeiture or “in rem civil forfeiture” is a legal process where law enforcement officers can take assets of people who are suspected of being involved in illegal activity even if the property owners are not charged with a crime. A civil action is filed against the property itself (hence the term “in rem”) and to get the property back, the owner has to prove that it was not involved in a criminal activity. In Indiana there is no need for the property value to be consistent with the fine for the crime.
During yesterday’s oral argument, (transcript: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1091_1bn2.pdf ) Justice Breyer asked the attorney for the state of Indiana how far this concept could go. “So 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?”
The attorney responded, “There is no excessive fines issue there….”
After stumbling for an answer, the attorney finally concluded that a million dollar sports car could be forfeited in that hypothetical situation. He stated, “[i]n rem forfeitures have always been with us and they have always been harsh.”
Justice Sotomayor then interrupted and said that this was previously true “up to a certain point in our history, we didn’t apply the Bill of Rights to the States.” She also expressed concern that “without incorporation [of the Eighth Amendment] the history’s going to be what you want it to be. The real question is the fundamental right.”
The U.S. Supreme Court previously ruled that the “cruel and unusual punishment” prohibition in the Eighth Amendment applies to the states, via the 14th Amendment. However a minority of states courts, such as Indiana have ruled that it only applies to the Federal government as the Supreme Court has not expressly ruled it applies to the states.
The applicability of the Bill of Rights (the first ten amendments to the Constitution) to the states is via the 14th Amendment, and there has been a steady attack on its applicability to the states, with various courts and politicians claiming that states have constitutional authority to limits some of these rights. For instance, some have argued that the Establishment Clause is limited to Federal actions and that states are still free to establish religion within their jurisdictions.
The Court is expected to issue a ruling within the next few months, and most Court watchers expect that the Court will confirm that the Excessive Fines Clause of the Eighth Amendment does apply to the states. However, state-level attempts to get out from under the Bill of Rights are expected to continue.