The question of whether the Constitution’s prohibition on excessive fines applies to state and local governments seemed to strike the Supreme Court on Wednesday as something of a constitutional no-brainer.
“Here we are in 2018 still litigating incorporation of the Bill of Rights,” said Justice Neil M. Gorsuch, referring to the judicial process of ensuring fundamental rights are protected against actions of the states. After Indiana Solicitor General Thomas M. Fisher hedged, Gorsuch seemed incredulous.
“Really? C’mon, general,” he said.
The court seemed more than ready to rule for Tyson Timbs of Marion, Ind., who had his $42,000 Land Rover seized after he was arrested for selling a couple hundred dollars worth of heroin. The ruling would also reinforce efforts to limit civil forfeitures, which critics say empower localities and law enforcement to seize property of someone suspected of a crime as a revenue stream.
“If we look at these forfeitures that are occurring today . . . many of them seem grossly disproportionate to the crimes being charged,” Justice Sonia Sotomayor said.
Wesley P. Hottot, a lawyer for the libertarian Institute for Justice, said that describes what happened to his client, Timbs.
With money he received from a life insurance policy after his father’s death, Timbs bought the Land Rover. But the 37-year-old was also an addict, and after he had spent the rest of his inheritance on drugs, he supported his habit by small-time dealing.
After his arrest for selling drugs to an undercover police officer, Timbs got a minimum sentence, one year of home detention and probation. But the state of Indiana seized his car, which has been used to transport the drugs.
An Indiana judge said “forfeiture of the Land Rover . . . was grossly disproportionate to the gravity” of the crime. He noted the maximum monetary penalty for Timbs’s crime was $10,000.
But the Indiana Supreme Court held that the excessive-fines clause did not apply to the states. Citing Indiana’s status as “a sovereign state within our federal system,” the court said it would not “impose federal obligations on the state that the federal government itself has not mandated.”
Three other states — Michigan, Mississippi and Montana — also take that position.
Hottot said the court’s task was nothing more than “constitutional housekeeping”: making clear all parts of the Eighth Amendment’s prohibitions — on excessive bail, on excessive fines and on cruel and unusual punishment — apply to the states.
He said other questions, such as whether the forfeiture in Timbs’s case was really excessive, or whether forfeiture was the same thing as an excessive fine, could be answered in future cases.
Fisher had the unenviable task of defending the Indiana Supreme Court decision, with which no justice seemed to agree.
“Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?” asked Justice Brett M. Kavanaugh.
Fisher tried to argue that civil forfeitures are not the same as excessive fines. They have always been with us, and they have always been harsh, he said.
Justice Stephen G. Breyer tested how far Fisher was willing to go with that. “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” he is driving, even if it is only going five miles over the speed limit, Breyer asked.
“Yes, it’s forfeitable,” Fisher answered.
The case is Timbs v. Indiana.