What can states seize? SCOTUS will decide whether the excessive fines clause applies to states
When his father died in 2012, Tyson Timbs spent a large chunk of the $73,000 he inherited to buy a Land Rover LR2.
“I just always liked them for as long as I can remember,” Timbs says of the high-end SUV brand. A salesman steered him from the used vehicle Timbs intended to buy and toward a brand-new model costing $42,000.
“It was going to be dependable,” says Timbs, a 37-year-old Indiana factory worker.
The Land Rover was indeed a dependable ride, but Timbs’ long-standing problems with drug use evolved into drug dealing, which led to his arrest in 2013 and the seizure of his prized set of wheels.
His prosecution has led to an important U.S. Supreme Court case about the Eighth Amendment’s prohibition against the imposition of “excessive fines.” The legal question in Timbs v. Indiana, scheduled for argument on Nov. 28 as part of the court’s December sitting, is whether the clause is incorporated against the states by the 14th Amendment.
Incorporations would be “a potentially very important constitutional limitation” on the states, says Beth A. Colgan, an assistant professor of law at University of California at Los Angeles who has written that excessive fines have become the “modern debtors’ prison.”
For 10 years, Timbs had battled a drug addiction—first with opioid painkillers and then heroin. By 2012, he had moved from Ohio to rural Indiana to live with an aunt. For a time, he had gotten clean. But his father’s death sent him into a relapse. After Timbs quickly spent the rest of his inheritance, he was looking for a way to fund his drug habit and began to deal in heroin, court papers say.
Timbs made two sales to undercover police officers in 2013, and he was driving his Land Rover on the way to another sale when the police pulled him over. Despite not finding any illegal drugs in the vehicle that day, the police arrested Timbs and charged him under state law with dealing in a controlled substance based on the two earlier undercover transactions.
While Timbs’ criminal case was pending, a private law firm under the authority of a local prosecutor filed a civil lawsuit seeking forfeiture to the state of the Land Rover, which the police had taken into their custody. Indiana is the only state allowing such private forfeiture actions, in which the private firms get a cut of any proceeds from the forfeited property, according to the petitioner’s brief. However, most states and the federal government routinely seek forfeiture of property used in criminal activity.
Timbs pleaded guilty to one count of dealing and one other criminal count. He was sentenced to six years, with one year to be served in home detention (with his aunt) and five years probation, plus about $1,200 in fines and court costs.
The same judge took up the civil forfeiture claim, finding that Timbs had used the Land Rover to transport heroin but ruling that forfeiture of the vehicle would be “grossly disproportional to the gravity” of the offense.
A panel of the Indiana Court of Appeals affirmed, holding that the excessive fines clause is applicable to the states and agreeing that the forfeiture would be disproportionate even to the maximum $10,000 criminal fine that could have been applied to Timbs for his drug offense.
The Indiana Supreme Court reversed, ruling 5-0 that the excessive fines clause has not been incorporated against the states.
Timbs’ appeal to the U.S. Supreme Court reached the justices at a time when there has been renewed attention to the potentially onerous burdens of civil fines and forfeitures.
In 2017, in a statement respecting the denial of certiorari in the case Leonard v. Texas, Justice Clarence Thomas expressed concerns about modern civil forfeiture practices.
“This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses,” Thomas wrote, adding that he was skeptical that historical forfeiture practices, which tended to arise in the realms of customs and piracy, could support “the contours of modern practice.”
Timbs has attracted support from a wide range of organizations, including the American Bar Association, the American Civil Liberties Union, the U.S. Chamber of Commerce and the Pacific Legal Foundation.
The ABA in its amicus brief told the justices about its Working Group on Building Public Trust in the American Justice System, which is addressing the concern that excessive judicial fines and fees “disproportionately harm the millions of Americans who cannot afford to pay them, entrenching poverty, exacerbating racial and ethnic disparities, diminishing trust in our justice system and trapping people in cycles of punishment simply because they are poor.”
A group of legal scholars filed an amicus brief in support of Timbs that says, “State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.”
Colgan, who has signed onto the scholars’ brief in support of Timbs, says, “We only have four cases in which the Supreme Court has interpreted the excessive fines clause, so we have a lot of open questions.”
Role in the Crime
Indiana argues that there is a problem with the idea that the forfeiture of Timbs’ Land Rover was disproportionate to his fines. “In our view, the excessive fines clause is about punishment for the criminal,” says Indiana Solicitor General Thomas M. Fisher. “When you’re talking about in rem forfeiture, you’re talking about an action against the property. It’s a separate proceeding.”
The state points out that after his arrest, Timbs admitted to the police that he would use his Land Rover to pick up heroin several times per week. At the forfeiture hearing, he said that doing so put “a lot” of miles on the vehicle.
“If you are trying to conceptualize the seizure of the property as proportional to something, you have to compare it to the role the property played in the crime,” he says.
Both sides’ briefs delve heavily into the history of the incorporation of the Bill of Rights against the states and into historical practices of fines and forfeitures. One of the state’s examples is meant to show that in rem forfeitures—legal actions directed against property instead of a person—have sometimes been quite draconian and disproportionate.
In an 1833 case, a federal court upheld the seizure of The Louisa Barbara, a 400-ton passenger vessel, because its 178 passengers exceeded a federal weight limit by one passenger.
“When we look at in rem forfeitures, we can see some harsh consequences in history,” Fisher says. “Yet no court has ever suggested there were any constitutional barriers to that.”
Lawyers for Timbs contend that Indiana is ignoring some more recent history. In Austin v. United States, in 1993, the Supreme Court held that forfeitures of property used in certain drug crimes authorized by two federal statutory provisions were “monetary fines” subject to the excessive fines clause.
By arguing that forfeitures aren’t fines, “the state attempts to relitigate Austin,” says Wesley P. Hottot, one of Timbs’ lawyers with the Institute for Justice, an Arlington, Virginia-based public interest legal organization.
The court has incorporated the Eighth Amendment’s other two provisions against the states—those barring excessive bail and cruel and unusual punishment. “The Supreme Court should finish the job and require the states to incorporate the excessive fines clause as a check against the government’s power to punish,” Hottot says.
Timbs has served his house arrest and probation, and he says he is now clean of using drugs. He drives some 35 miles each day to his factory job in Huntington, Indiana, where he is a machinist in a John Deere plant.
He borrows his aunt’s car. It’s a 2012 Dodge Avenger, a modest sedan, since his Land Rover is still in possession.
“I’ve been made aware that if I get it back, it might not be in the best condition,” Timbs says. “I wrote that truck off a long time ago.”
But he hasn’t written off the legal battle he is waging. “I feel like I stand for something,” Timbs says. “I’m coming out of a life of addiction where I didn’t mean a lot to anyone. Now I feel like I’m doing something good with this.”
This article ran in the December 2018 issue under the headline "Under seize: The high court will address whether the excessive fines clause applies to states."