WASHINGTON (CN) – The Supreme Court appeared eager Wednesday to make states comply with the constitutional bar against excessive fines, with some justices casting the decision as all but inevitable.
“I mean, most of the incorporation cases took place in like the 1940s,” said Justice Neil Gorsuch this morning, addressing the solicitor general of Indiana. “And here we are in 2018 still litigating the incorporation of the Bill of Rights. Really? Come on, general.”
In the century and a half since the adoption of the 14th Amendment, the Supreme Court has piece by piece applied the rights guaranteed in the Bill of Rights to the states. But the Eighth Amendment’s excessive-fines clause is one of several that the court has yet to incorporate.
That proved to be a problem for Tyson Timbs.
As a way to fund an opioid addiction he developed after being prescribed painkillers for a foot ailment, Timbs began selling heroin in Indiana. He made two sales to people who turned out to be undercover police officers and was on his way to a third when police pulled him over and arrested him.
At the time, Timbs was driving a $42,000 Land Rover, which he bought with some of the money he received from a life insurance policy after his father died. While Timbs’ criminal case was pending, a law firm filed a civil forfeiture lawsuit on behalf of Indiana seeking to take the car on the grounds that it was used in a crime.
Timbs, who pleaded guilty to some of the charges against him, opposed the forfeiture by saying the value of the car far exceeded the maximum possible fine he faced for his drug dealing. A trial judge agreed, as did the Indiana Court of Appeals, but the state’s Supreme Court reversed, holding the U.S. Supreme Court had never incorporated the Eighth Amendment’s prohibition against excessive fines.
Arguing for Timbs on Wednesday, Institute for Justice attorney Wesley Hottot said applying the excessive-fines clause to the states is a matter of “constitutional housekeeping” that fits neatly within the test the court has used to apply other Bill of Rights clauses to the states.
“We’re not asking the court to articulate a new standard of excessiveness,” Hottot said. “We’re not asking the court to determine that this forfeiture was or was not excessive. We’re merely emphasizing that part of the purpose of the 14th Amendment was to guarantee to all 330 million Americans a right to a defense under the excessive fines clause. Indiana denied petitioner that defense, and the court should reverse and remand.”
Hottot faced few difficult questions during his time before the court, though Justice Samuel Alito and Chief Justice John Roberts pressed him on the limits of his argument.
“If six years’ imprisonment is not a violation of the Eighth Amendment, and you said it might be, I think you might have something of an uphill fight to prove that,” Alito said. “But three years, two years? How low would the ceiling of permissible term of imprisonment have to go in order to justify a holding that a fine of $42,000 is a violation of the Eighth Amendment? What is the equation between dollars in a fine and time imprisonment?”
Indiana Solicitor General Thomas Fisher faced tougher questions, as he attempted to persuade the court that, while the excessive-fines clause might apply to the states, it does not cover forfeitures of property like the ones at issue in this case.
Fisher said these forfeitures, known as in rem forfeitures, have been a staple of government for centuries and that the court should therefore be hesitant to restrict them at the state level under the Eighth Amendment.
When Justice Stephen Breyer asked if that would mean a state could seize someone’s Bugatti after catching them going 5 mph over the speed limit, Fisher said that would be within the bounds of the lengthy history of civil forfeiture.
“Well, in rem forfeitures have always been with us, and they have always been harsh,” Fisher said.
The justices wondered, however, whether they would have to decide the fate of in rem forfeiture based on this case, or whether they could incorporate the excessive-fines clause to the states and then worry about whether such forfeitures are excessive at a later time.
“I mean, the question presented is does the excessive fines clause, you know, is it incorporated in the Eighth Amendment?” Roberts asked. “And I guess your argument seems to be this isn’t an excessive fine and, in fact, it isn’t a fine at all. Well, we can deal with that later, right?”
Justice Sonia Sotomayor also noted Fisher’s position would require the court to overturn its unanimous decision in Austin v. United States, in which the court held the Eighth Amendment applies to civil forfeiture actions.
“So, just so I’m clear, you’re asking us to overturn Austin because that’s the only way you can win with a straight face?” Sotomayor asked.