Justices' Answer On Excessive Fines Invites New Questions

By RJ Vogt | February 24, 2019, 8:02 PM EST

After years of passing by the impound lot where Indiana police parked the $42,000 Land Rover they seized from him, Tyson Timbs might finally get his car back.

It only took a unanimous U.S. Supreme Court ruling.

In a blockbuster decision on Timbs' case, the nation's highest court declared Wednesday that the constitutional ban on excessive fines applies to state and local governments. Justice Ruth Bader Ginsburg's majority opinion detailed how the Eighth Amendment's excessive fines clause is "fundamental to our scheme of liberty" and rooted in a legal tradition dating back to the Magna Carta.

Many advocates called it an important victory in the fight for a fairer justice system, but others noted the high court stopped short of explaining how courts should decide when a fine or forfeiture is excessive.

While "encouraging," American Civil Liberties Union senior attorney Emma Andersson said Thursday the ruling may not turn out to be much of a check on police and prosecutors.

"The court said that the excessive fines clause applies to Timbs' forfeiture case, but it did not say that Timbs' forfeiture case violates the excessive fines clause," she said. "In other words, the court has said that the rule applies but it hasn't clearly articulated what that rule is."

Tyson Timbs, right, with his attorney, Wesley Hottot. (Institute for Justice)

Timbs' attorney, Wesley Hottot of the Institute of Justice, told Law360 on Thursday that the court's ruling didn't guarantee his client will recover the vehicle, but rather remanded the case to the Indiana Supreme Court.

"The question now is, is the state of Indiana going to give him back his car?" Hottot said.

At the core of the case was the practice of civil asset forfeiture, increasingly used by police and prosecutors to seize property believed to be used in crimes. In 2017, the federal Asset Forfeiture Fund took in about $1.6 billion in gross forfeiture revenue, including both cash and proceeds from the sale of seized cars and other property, according to a U.S. Department of Justice inspector general audit. That's down from $1.9 billion in 2016, the report said.

At the state level, civil forfeiture has also boomed, according to an Institute of Justice study. All states allow some type of forfeiture, and for the 14 states the institute looked at, forfeiture revenue more than doubled between 2002 and 2013.

Indiana seized Timbs' Land Rover after he pled guilty in 2015 to dealing four grams of heroin. His punishment included house arrest, probation and $1,200 in related fees, but within months of his arrest, the state also filed a civil forfeiture lawsuit to nab the car he used to sell drugs.

Though a trial judge denied the forfeiture bid on the grounds that it would be a violation of the Eighth Amendment's ban on excessive fines, the Indiana Supreme Court reversed that decision, saying the U.S. Supreme Court had not expressly applied the excessive fines clause to the states.

Wednesday's ruling quashed that argument and should give momentum to critics of state forfeiture practices. Lisa Foster, co-founder of the Fines And Fees Justice Center, said the decision enables advocacy groups to go to state legislatures and lobby against the use of fines, fees and forfeitures as a way to raise revenue.

"The court's recognition gives us ammunition both in legislatures and in courts to say, 'you need to look at how this is affecting poor people and people of color,'" Foster told Law360 on Thursday. "I suspect that folks around the country will use this opinion to bolster their arguments."

Andersson, who works for the ACLU's Criminal Law Reform Project, agreed that the Timbs opinion "could potentially restrain civil asset forfeiture," but noted it will only be useful on a case by case basis.

"If you don't fight your case in court, then you have no opportunity to argue that the forfeiture violates the Eighth Amendment's excessive fines clause," she said. "Unfortunately, there are lot of reasons people don't or can't fight their cases."

One barrier is the fact that, while they stem from criminal charges, civil forfeiture actions take place in the civil justice system, which does not provide court-appointed attorneys for the indigent. Because many forfeitures involve property that costs less than what it would cost to hire a lawyer, "even if you won the case you'd lose money on balance," Andersson explained.

"Even if you try to fight the case alone, it's exceptionally difficult to win a claim under the excessive fines clause because the Supreme Court has not clearly defined the substantive contours of the right," she added.

Defining those contours is likely the subject of lawsuits to come. Larry Rosenthal, an attorney who wrote a State and Local Legal Center amicus brief supporting Indiana that was joined by the National Association of Counties and the National League of Cities, among others, said Wednesday he expects "an avalanche of litigation" will seek to answer the question of how to determine excessiveness.

"We certainly thought the forfeiture at issue in the Timbs case was entirely appropriate," he said, noting the Land Rover in question was used to transport heroin. "But because the court's opinion decides only a very abstract question, it offered very little guidance to the litigation to follow."

"We've kind of opened a Pandora's box," Rosenthal added.

During oral arguments in November, Hottot had argued the excessiveness test should include consideration of both the individual's circumstances and the crime in question. Foster said Justice Ginsburg's opinion signals she agreed: it notes that the Magna Carta required sanctions "be proportioned to the wrong" and "not be so large as to deprive [an offender] of his livelihood."

"Ginsburg's giving us some clues about how the Court will decide excessiveness," Foster said.

But first, judges across the country will grapple with the question. Hottot said they may eventually find that "the next step is to end civil forfeiture."

"We have police and prosecutors collecting the money they need on the streets," he said. "Judges have the freedom to work as a check against runaway prosecutors, especially when a state benefits financially from taking people's property."

--Editing by Pamela Wilkinson.

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