The conservatives and libertarians who have long complained about governmental abuse of civil asset forfeiture in criminal cases are on the verge of a legal victory at the U.S. Supreme Court. The victory will be owed, however, not to the doctrine of constitutional originalism that so many conservatives view as sacrosanct, but to the theory of living constitutionalism that they view as legal and judicial heresy.
The resourceful litigators at the libertarian Institute for Justice (IJ) found an appealing case to use to ask the justices to rein in the widespread practice that state and local law enforcement agencies employ to seize valuable property from accused offenders. The hour-long arguments in Timbs v. Indiana last week [Nov. 28] made clear that justices across the ideological spectrum are set to rule, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states just as it limits the federal government.
As the unfortunate victim of forfeiture abuse, the IJ lawyers found Tyson Timbs, a recovering opioid addict who fell into selling heroin and thus into the clutches of undercover police officers in Marion, Indiana. When arrested in 2013, Timbs was driving the $42,000 Land Rover SUV that he bought a few months earlier with the proceeds from his father's life insurance policy. Timbs was given probation after pleading guilty in 2015 to selling four grams of heroin for $385 in two separate sales, but the car was seized and three years later sits idle in a police parking lot.
Like other states, Indiana authorizes the forfeiture of property representing the fruits or instrumentality of a crime. Civil asset forfeiture has been part of American law for 300 years, ever since the colonies seized ships from seafaring pirates. Under an especially abusive policy, the authorities in Marion outsourced the seizure of Timbs's vehicle to a private lawyer, who stood to reap a contingency fee for the service: "institutionalized bounty-hunting," as the IJ lawyer Wesley Hottot called it in his Supreme Court brief for Times
After taking Timbs's guilty plea, Judge Jeffrey Todd found the seizure of the Land Rover "grossly disproportionate" to Timbs's offense: the car cost four times as much as the maximum $10,000 fine allowed under Indiana law. Indiana's intermediate-level Court of Appeals agreed, but on review the Indiana Supreme Court held that the Eighth Amendment's Excessive Fines Clause does not apply to states because the U.S. Supreme Court has never said so, in so many words.
The Eighth Amendment's stipulation that "excessive fines" not be "imposed" comes straight from the English Bill of Rights, adopted in 1689 as part of England's Glorious Revolution. State constitutions have included similar language ever since the Founding Era. The amendment's other prohibitions — against "excessive bail" and "cruel and unusual punishments" — have been held to be incorporated against states, respectively in 1971 and 1947.
Virtually all the other provisions of the Bill of Rights have also been applied to the states under the so-called incorporation doctrine, beginning in earnest with the First Amendment in the 1920s and 1930s and most recently the Second Amendment's right to keep and bear arms in 2010. For no particular reason, however, the Supreme Court has never explicitly incorporated the Excessive Fines Clause.
The Court's newest justices, Neil Gorsuch and Brett Kavanaugh, were visibly impatient with any suggestion from Indiana's solicitor general, Thomas Fisher, that the clause does not apply to the states. "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?" Kavanaugh asked, skipping over the unincorporated grand jury and civil jury rights in the Fifth and Seventh Amendments.
Fisher seemed to make some headway, however, with his more nuanced argument that forfeitures are not fines at all. "Your argument is that it isn't a fine at all," Roberts said, summing up without rejecting the position. "History is four-square against [Timbs's] claim," Fisher answered.
A quarter-century ago, the Supreme Court did invoke the Excessive Fines Clause in a forfeiture case brought by the federal government. The unanimous decision in Austin v. United States (1993) ordered a lower federal court to reconsider the government's seizure of a South Dakota man's mobile home and business in a relatively minor drug case. In a partial concurrence, however, Justice Antonin Scalia, the godfather of constitutional originalism, described it as a "closer question" whether the clause applies to "confiscations of property rights based on improper use of the property."
In his argument, Hottot contended that modern-day forfeiture differs from the forfeitures of the Founding Era after having turned into a revenue source for financially strapped police departments. Indeed, an IJ report cited in his brief counted $254 million worth of civil asset forfeitures by law enforcement agencies in 26 states and the District of Columbia in a single year: 2012.
Justice Sonia Sotomayor appeared sympathetic, based on examples cited in briefs filed in the case. "Many of them seem grossly disproportionate," she said. Fisher countered, however, that forfeitures have often been "draconian" from historical times to the present.
The wide array of groups supporting Timbs in the case — from the American Civil Liberties Union to the U.S. Chamber of Commerce and many others — suggests the time has come to set constitutional limits on forfeiture abuse. But make no mistake: Timbs will owe any victory not to the dead Constitution that Scalia revered, but to the living Constitution that adapts as time and circumstances change.
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