SCOTUS will decide whether the excessive fines clause applies to states. Mark Walsh has this article in the December 2018 issue of ABA Journal magazine. Here is an excerpt:

‘WELL-CHRONICLED ABUSES’

Timbs’ appeal to the U.S. Supreme Court reached the justices at a time when there has been renewed attention to the potentially onerous burdens of civil fines and forfeitures.

In 2017, in a statement respecting the denial of certiorari in the case Leonard v. Texas, Justice Clarence Thomas expressed concerns about modern civil forfeiture practices.

“This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses,” Thomas wrote, adding that he was skeptical that historical forfeiture practices, which tended to arise in the realms of customs and piracy, could support “the contours of modern practice.”

Timbs has attracted support from a wide range of organizations, including the American Bar Association, the American Civil Liberties Union, the U.S. Chamber of Commerce and the Pacific Legal Foundation.

The ABA in its amicus brief told the justices about its Working Group on Building Public Trust in the American Justice System, which is addressing the concern that excessive judicial fines and fees “disproportionately harm the millions of Americans who cannot afford to pay them, entrenching poverty, exacerbating racial and ethnic disparities, diminishing trust in our justice system and trapping people in cycles of punishment simply because they are poor.”

A group of legal scholars filed an amicus brief in support of Timbs that says, “State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.”

Colgan, who has signed onto the scholars’ brief in support of Timbs, says, “We only have four cases in which the Supreme Court has interpreted the excessive fines clause, so we have a lot of open questions.”

ROLE IN THE CRIME

Indiana argues that there is a problem with the idea that the forfeiture of Timbs’ Land Rover was disproportionate to his fines. “In our view, the excessive fines clause is about punishment for the criminal,” says Indiana Solicitor General Thomas M. Fisher. “When you’re talking about in rem forfeiture, you’re talking about an action against the property. It’s a separate proceeding.”

The state points out that after his arrest, Timbs admitted to the police that he would use his Land Rover to pick up heroin several times per week. At the forfeiture hearing, he said that doing so put “a lot” of miles on the vehicle.

“If you are trying to conceptualize the seizure of the property as proportional to something, you have to compare it to the role the property played in the crime,” he says.

Both sides’ briefs delve heavily
into the history of the incorporation of the Bill of Rights against the states and into historical practices of fines and forfeitures. One of the state’s examples is meant to show that in rem forfeitures—legal actions directed against property instead of a person—have sometimes been quite draconian and disproportionate.

In an 1833 case, a federal court upheld the seizure of The Louisa Barbara, a 400-ton passenger vessel, because its 178 passengers exceeded a federal weight limit by one passenger.

“When we look at in rem forfeitures, we can see some harsh consequences in history,” Fisher says. “Yet no court has ever suggested there were any constitutional barriers to that.”

Lawyers for Timbs contend that Indiana is ignoring some more recent history. In Austin v. United States, in 1993, the Supreme Court held that forfeitures of property used in certain drug crimes authorized by two federal statutory provisions were “monetary fines” subject to the excessive fines clause.

By arguing that forfeitures aren’t fines, “the state attempts to relitigate Austin,” says Wesley P. Hottot, one of Timbs’ lawyers with the Institute for Justice, an Arlington, Virginia-based public interest legal organization.

The court has incorporated the Eighth Amendment’s other two provisions against the states—those barring excessive bail and cruel and unusual punishment. “The Supreme Court should finish the job and require the states to incorporate the excessive fines clause as a check against the government’s power to punish,” Hottot says.

Timbs has served his house arrest and probation, and he says he is now clean of using drugs. He drives some 35 miles each day to his factory job in Huntington, Indiana, where he is a machinist in a John Deere plant.

He borrows his aunt’s car. It’s a 2012 Dodge Avenger, a modest sedan, since his Land Rover is still in possession.

“I’ve been made aware that if I get it back, it might not be in the best condition,” Timbs says. “I wrote that truck off a long time ago.”

But he hasn’t written off the legal battle he is waging. “I feel like I stand for something,” Timbs says. “I’m coming out of a life of addiction where I didn’t mean a lot to anyone. Now I feel like I’m doing something good with this.”