Overview
On February 20, 2019, the US Supreme Court ruled that the "Excessive Fines Clause" in the Eighth Amendment to the US Constitution, which prohibits the imposition of excessive fines but has traditionally applied only to the federal government, applies equally to the states and specifically to civil forfeitures. See Timbs v. Indiana, 586 U.S. __, No. 17-1091 (Feb. 20, 2019). The court's unanimous 9-0 ruling—exceedingly rare, especially in the criminal justice context—represents a significant victory for property owners and individual citizens facing excessive fines, fees, and forfeitures. The Supreme Court's ruling also has the potential to strike at the heart of the controversial practice of "civil forfeiture" that has been widely employed for decades by a large majority of state and local governments to indefinitely seize and in many cases permanently forfeit property allegedly connected, often loosely, to suspected criminal activity.
Civil Forfeiture at the Federal and State Levels
Although in the Timbs case, as discussed below, the state of Indiana secured a conviction against the defendant, which eventually led to a forfeiture that is hardly the norm in civil forfeiture cases. Very often, law enforcement will seize assets of the accused without an actual conviction. This is accomplished through civil cases brought by the government as "in rem" forfeitures, meaning the property itself is the defendant, not the individual.
It is counterintuitive, but under federal law and in most states, owners of forfeited property need not be convicted of or even charged with a crime to be permanently stripped of their home, car, or money. Not only do these same laws also typically grant comparatively few due process protections to property owners, but they also allow law enforcement agencies to keep some or all of the resulting proceeds, and to then spend those funds with minimal oversight and transparency.
That financial incentive has led many agencies to treat forfeiture as a key revenue-raising tool, and because winning cases is relatively easy and often uncontested—assuming an individual even has the financial means to challenge the forfeiture—governments frequently pursue forfeiture cases, even in some instances where there is little evidence of actual criminal wrongdoing. This broken incentive structure has made dubious property confiscations common around the country. According to US Department of Justice statistics, the use of civil forfeiture is now measured in the billions of dollars per year at the federal level alone, and most forfeitures are now achieved through uncontested civil proceedings rather than criminal prosecutions.
As a result of this trend, the use of civil forfeiture has received increasing media attention and legal scrutiny in recent years.
The Supreme Court’s Decision in Timbs v. Indiana (2019)
In Timbs, the state of Indiana seized a vehicle valued at $42,000 from the defendant after he was arrested for, in part, dealing in controlled substances. After the defendant pled guilty, the state instituted a "civil forfeiture" action seeking to have the vehicle permanently forfeited, rather than seeking forfeiture as part of the criminal proceeding. Although the trial court held that the vehicle was used in commission of the underlying crime, the court denied the state's request on grounds that the forfeiture of $42,000 in property was grossly disproportionate to the maximum fine that could be imposed for dealing in controlled substances, which was only $10,000. However, on appeal, the Indiana Supreme Court reversed the decision and permitted the forfeiture, ruling that the Eighth Amendment's prohibition on excessive fines applied only to federal actions, not to state civil forfeiture actions.
On appeal before the US Supreme Court, a unanimous court concluded that the Excessive Fines Clause is incorporated into the Fourteenth Amendment and therefore applies to the states. Writing for the court in a brief opinion, Justice Ginsburg explained that similar to the Eighth Amendment's protections against "cruel and unusual punishment" and "excessive bail," the protection against excessive fines "guards against abuses of government's punitive or criminal-law-enforcement authority." Slip op. at 2. The need to be vigilant against excessive fines is especially important, the court reasoned, because they are not self-limiting. Whereas other forms of punishment cost money (for example, prison), "fines are a source of revenue" and "state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue." Id. at 6-7 (citations omitted).
The court ultimately held that protection against excessive punitive economic sanctions secured by the Eighth Amendment is "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition," and accordingly, the case for incorporating the protection into the Fourteenth Amendment, thereby extending it to the States, is "overwhelming." Id. at 7 (citations omitted). Although there was some disagreement between the justices on the proper legal path for incorporation,[1] all nine Justices agreed the Eighth Amendment's prohibition against excessive fines applies to both the federal and state governments. And once a right is incorporated, as Justice Ginsburg wrote, "there is no daylight between the federal and state conduct it prohibits." Id. at 3.
Furthermore, the court refused to engage with the state of Indiana's argument that the excessive fines clause, even if incorporated, would not apply to a civil property forfeiture like the one at issue in Timbs. Id. at 7-9. Because the state did not make that argument below, the issue was not properly before the court.[2] But the fact that the case involved a civil forfeiture provided the court with the opportunity to reinforce that under existing precedent,[3] the Eighth Amendment’s prohibition against excessive fines does apply to civil in rem forfeitures when such forfeitures "are at least partially punitive." Slip op. at 7-8. And critically, therefore, the Supreme Court's extension of the Eighth Amendment's protections to state proceedings means that civil forfeitures at the state and local levels must be subject to constitutional scrutiny for excessiveness.
What is the potential impact of the Timbs decision?
At the federal level, where the Eighth Amendment's protections have traditionally applied, including against excessive civil forfeitures, it is unclear what (if any) impact the Supreme Court's decision in Timbs will have, especially in the near term. Likewise, despite its historical significance, the Timbs decision may not provide immediate relief to criminal defendants or targets of civil forfeiture at the state level because, as the Supreme Court recognized, all 50 states already have constitutional provisions limiting excessive fines, and many state courts have been evaluating forfeiture challenges for years with the Eighth Amendment in mind.
Moreover, the Supreme Court and state courts have repeatedly upheld the legality of civil forfeiture, and the Timbs decision did nothing to take away that controversial tool or end its abusive deployment. It is unlikely that police and prosecutors will unilaterally disarm or even take a more lenient approach to the practice of civil forfeitures. So long as state and local law enforcement agencies are allowed to keep most or all of the assets they seize, often times without even charging property owners with a crime, they will be incentivized to maximize the frequency and amount of forfeitures. Thus, the question now becomes how courts will assess challenges to excessive civil forfeitures under the Eighth Amendment in light of the Supreme Court's pronouncement in Timbs, especially at the state level.
What is clear is that even if Timbs does not lead to a toppling of the civil forfeiture regime, the unanimous ruling—and unequivocal language therein—provides criminal defendants and individuals subject to excessive fines and civil forfeitures new ammunition to combat abusive practices. By formally recognizing that the "excessive fines clause" applies to state and local governments, including with respect to civil forfeitures, and simultaneously reinforcing the importance of the Eighth Amendment protections, the Supreme Court opened the door to more effective challenges against excessive fines and forfeitures, even if the court is not ready to make the practice of civil forfeiture disappear altogether.
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Over the past decade, the practice of civil forfeiture has justifiably come under increasing scrutiny as its use has expanded dramatically, both in frequency and severity. While the hope among critics is that the practice will come to an end at some point in the future, the Supreme Court's decision in Timbs will unquestionably make it easier to fight unfair forfeitures—as well as excessive fines—at the state and local level, and could even deter law enforcement agencies from making such seizures to begin with. At a minimum, the case brings additional attention to an important issue for which momentum for reform continues to build, and could mark a turning point in a broader effort to rein in abusive property seizures by governments across the nation.
[1] In separate concurrences, Justices Gorsuch and Thomas argued that the appropriate vehicle for incorporation was the Fourteenth Amendment’s "Privileges and Immunities Clause," not the Due Process Clause.
[2] In light of the case's procedural posture, the court also did not have to reach the underlying question of whether the $42,000 forfeiture was grossly disproportionate, and constitutionally excessive, for a crime punishable by a $10,000 maximum fine. However, because the court vacated the Supreme Court of Indiana's decision and remanded for further proceedings, the finding by the trial court and Indiana Court of Appeals that the forfeiture was excessive will presumably be reinstated, but the Supreme Court of Indiana may be the final arbiter of whether—this time applying the Eighth Amendment—the forfeiture was excessive.
[3] See Austin v. United States, 509 U.S. 602 (1993).
