The Supreme Court’s unanimous ruling in Timbs v. Indiana is the sort that could either be easily overlooked, dealing with the generally unsexy Eighth Amendment’s Excessive Fines Clause, or misunderstood. The ruling “incorporated” the clause, meaning applied it to the states under the Fourteenth Amendment. That’s a big deal. But Tyson Timbs won a battle, not yet the war.
The case before the Supreme Court, Timbs v. Indiana, involved the seizure of a $42,000 Land Rover SUV from Tyson Timbs, who was arrested in 2015 for selling heroin to undercover police officers. He pleaded guilty to his crimes and was sentenced to one year of house arrest and five years of probation. On top of that, the state of Indiana seized his 2012 Land Rover—which he had purchased with money received from his late father’s life insurance payout, not with the proceeds of drug sales—on the ground that it had been used to commit a crime.
Timbs challenged that seizure, arguing that taking his vehicle amounted to an additional fine on top of the sentence he had already received. The Indiana Supreme Court rejected that argument, solely because the U.S. Supreme Court had never explicitly stated that the Eighth Amendment applied to the states.
Notwithstanding the fact that an “instrumentality of a crime” remains forfeitable to the sovereign under civil in rem forfeiture laws, along with proceeds and the dreaded “substitute proceeds,” there now appears to be an upper limit to just how much the government can snatch from a person, based upon the Excessive Fines Clause.
For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as
the Stuarts’ critics learned several centuries ago. See Browning-Ferris, 492 U. S., at 267. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.”
Indiana didn’t take a serious position against incorporation, but rather that in rem forfeitures, actions against the property itself rather than the owner of the property, shouldn’t fall within the ambit of the Eighth Amendment. Writing for the Court, Justice Ginsburg rejected the position.
In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” McDonald, 561 U. S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not properly before us, and the second misapprehends the nature of our incorporation inquiry.
Nice as that may be, it explains nothing about how it would work. If forfeiture is in rem, without any necessary connection to a criminal proceeding or an individual’s crime, then the legal concept is that the property itself is “criminal.” If a Bugatti is used to deliver a gram of coke, the argument that the car is an intrumentality of a crime is the same as if it delivered 100 kilos. It’s the delivery, not the quantity, that makes it forfeitable. If it’s a ridiculous notion to forfeit the car rather than prosecute the person responsible for the delivery, then it’s just as ridiculous for a gram as a kilo.
But as someone asked after the decision came down, where do Timbs and the Institute for Justice, which represented him, go to get the enormous costs of bringing the case to the Supreme Court back? The answer is they don’t. And that answer sucks the wind out of the decision, as the vast majority of forfeitures aren’t connected to criminal prosecutions, but are cops on the road baselessly stealing money or cars from poor schmucks based on fabricated pretenses. And they can’t afford to fight the forfeitures.
How does one fight a legal battle over a $1000 in rem seizure? How does one fight for the return of a 2006 Ford? The money, the car, matter enormously to the person from whom it was taken, but the cost of winning exceeds the cost of losing. People aren’t into Pyrrhic victories these days.
Will Timbs‘ incorporation of the Excessive Fines Clause change these seizures? In rare instances, yes, when the seizure is either connected to a prosecution so that the defendant is in the fight anyway, or the value of the seizure is sufficiently large that it warrants a dedication of additional funds to retain counsel and battle for the return of property. Or, for the lucky few, an organization like IJ takes on your cause at its expense.
Timbs had a $42,000 Land Rover at risk, which is nothing to sneeze at. But the cost associated with the Supreme Court win might be well into the millions. If he had to pay for it, he could have purchased quite a few Land Rovers rather than rolled the dice with legal fees. As allocation of scarce resources goes, winning was a sucker’s bet.
And Tyson Timbs, good as he must feel to get this unanimous decision, still hasn’t won his Land Rover back. The case was remanded to Indiana to now decide whether its forfeiture violated the newly incorporated Excessive Fines Clause. He could still lose for winning. Or he could win, and now, in 2019, get back the car seized so long ago.
For most people whose car is forfeited, it sits in an auto pound for all those years, exposed to the elements and the critters, uncared for, unloved. Winning it back, after all it took and cost, isn’t the victory one might expect. And this is what comes of winning. It will suck even worse if Tyson Timbs ends up losing the war.