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Another Win for Selective Incorporation: No More Excessive Fines

The Excessive Fines Clause of the 8th Amendment has just been incorporated by a unanimous Supreme Court.

As we understood the Bill of Rights at the founding, these provisions restricted only congress, the national government.  After the Civil War and the ratification of the Reconstruction Amendments, the jurisprudence of the United States began to shift. 

The 14th Amendment says the following: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It became clear that states were not behaving as they ought and a federal remedy was needed to guide how exactly those provisions applied to the states.

After a few decades of case law refusing to address it, the Supreme Court decided in Gitlow v. New York that the right to free speech did apply to the states via the Liberty Prong of the Due Process Clause of the 14th amendment.

And that’s how we got Substantive Due Process and Selective Incorporation, where the provisions found in the Bill of Rights (and a few others not mentioned) end up being applied to the states even though the Bill of Rights originally restrained only congress.

Since the Gitlow decision in 1927, the Supreme Court has gradually applied more and more rights to the states.

We find ourselves at the end of incorporation with only a few provisions left to be applied. 

Today the Supreme Court added another provision to the list of incorporated rights.

The case is Timbs v. Indiana. A unanimous Court has held that the Excessive Fines Clause of the 8th Amendment does apply to the states.  Justice Ginsburg wrote the majority opinion while Justices Gorsuch and Thomas filed concurring opinions.

A man in Indiana was arrested for drug related offenses.  He was convicted, but not before the state seized his Land Rover. The cost of the SUV exceeded the maximum fine that could have been levied against him, prompting this suit.

The opinion says,

“The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.”

It’s a short opinion that relies heavily on the history of the Anglo-American legal heritage. It also relies on the precedent set by McDonald v. Chicago.  As a recent incorporation case that the left would prefer overturned, the Court actually solidifies the legal stature of that gun rights case.

This case is also interesting in that the concurring opinions seek a different approach.  Gorsuch and Thomas take issue with Substantive Due Process.  They would prefer to see the Bill of Rights incorporated via the Privileges and Immunities Clause, as it can be understood as a more faithful application of the text and leads to less uncharted territory. I suppose that Thomas has always seemed wonky on the subject, even Scalia would not dispute Substantive Due Process, describing it as the accepted method of Incorporation.  Gorsuch’s concurrence highlights an increased likelihood that a jurisprudential aberration may become mainstream.  

The opinion stayed far away from addressing the issue of civil asset forfeiture, knowing that the lower courts or the state would have to address the question on remand, as that specific question was not directly before the court.

It does bode well though for opponents of asset forfeiture since the Court has closed the gap between permissible state action and permissible federal action.  Ginsburg says, “Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.”

As Justice Thomas points out, the current method is technically only concerned with procedural protections.  When the lower courts address the issue of asset forfeiture, they will have to weigh those considerations. 

If my understanding is correct, incorporation of the Excessive Fines Clause means that there is no permissible way for levying excessive fines.  Yet if it is covered by Substantive Due Process, then that liberty may be deprived WITH due process. I don’t know how those two ideas can coexist.

When we look at the issue of asset forfeiture, we divide it into two categories, civil and criminal.  Criminal asset forfeiture is connected to a criminal conviction.  Civil asset forfeiture only has to connect the property or asset to a crime and be proved at a certain standard.  This standard can range from probable cause to beyond a reasonable doubt.  Most states are moving away from the probable cause standard.  I remember assisting a prosecutor in a few forfeiture proceedings.  I can remember the judge simply reading back the statute that the state had probable cause under the Cannabis Control Act or some other statute to seize the property in question.

It is not a process we should be proud of.  But as states move away from probable cause to a higher burden of proof, this new decision makes me wonder what process protections, if any, are sufficient to continue this practice in some manner.

Timbs v. Indiana is going to require years of further litigation to find out what is excessive. We will have to find out whether any form of civil or criminal asset forfeiture is still permitted. 

This decision places civil asset forfeiture on notice.

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