Timbs v. Indiana: Toward the Regulation of Mercenary Criminal Justice
![handle is hein.journals/fedsen32 and id is 5 raw text is:
Timbs v. Indiana: Toward the Regulation of Mercenary
Criminal Justice
In a free government, almost all other rights would
become worthless, if the government possessed an
uncontrollable power over the private fortune of
every citizen.'
In Timbs v. Indiana,' the Supreme Court unanimously
held that the Eighth Amendment's Excessive Fines Clause
is an incorporated protection under the Fourteenth
Amendment and therefore regulates state and local gov-
ernments. The unanimous result, wedding liberal and
conservative Justices alike, was backed by an ideologically
diverse group of amici, including the ACLU, the U.S.
Chamber of Commerce, and the Cato Institute. The gov-
ernment practice that gave rise to the litigation-civil asset
forfeiture-has been subject to widespread criticism,
fueled by troubling accounts of what has come to be
known as policing for profit.3
Reaction to Timbs ran the gamut from regarding it as
a huge4 decision to declaring it would have little impact.5
As I discuss in this symposium contribution, Timbs is
important both because it provides a new federal constitu-
tional basis for regulating government targeting of criminal
defendants for revenue generation and because it signals
the Court's broader recognition of the problematic nature
of the practice.
I. What Timbs Decided and Why
Tyson Timbs pled guilty in Indiana state court to dealing in
a controlled substance and conspiracy to commit theft. The
charges arose out of Timbs selling two grams of heroin to
an undercover agent on two occasions. Timbs was sen-
tenced to a term of six years, with one year executed in
community corrections and five years suspended to pro-
bation. He was also assessed fees and costs totaling $1203.6
When Timbs was arrested, police seized the vehicle he
used when he sold drugs to the agent, a Land Rover SUV
with 17,000 miles on its odometer. Timbs bought the
vehicle for $42,000, using life insurance proceeds he
received when his father died.7 Indiana authorities there-
after engaged a private law firm to file a civil forfeiture
action regarding the Land Rover. The trial court denied the
requested forfeiture, finding it grossly disproportionate,
reasoning that the vehicle's $42,000 purchase price was
more than four times the maximum $io,ooo fine assess-
able against Timbs for his drug conviction.8 The court
based its decision on the Eighth Amendment's Excessive
Fines Clause, a view backed by the Indiana Court of
Appeals.9 The Indiana Supreme Court reversed, conclud-
ing that the Excessive Fines Clause regulates only federal,
not state, sanctions.'0
The issue before the U.S. Supreme Court was a narrow
one, referred to by government counsel at oral argument as
entailing only constitutional housekeeping: whether the
Excessive Fines Clause, one of the very few remaining parts
of the Bill of Rights yet to be incorporated, should be
incorporated and therefore applicable to the states under
the Fourteenth Amendment's Due Process Clause.
The Court agreed with Timbs, holding that the Excessive
Fines Clause is an incorporated protection. Justice Gins-
burg, in an opinion joined by seven of her colleagues,
reasoned that like each of the other parts of the Eighth
Amendment the Court had already incorporated, the
Excessive Fines Clause guards against abuses of govern-
ment's punitive or criminal-law-enforcement authority.2
The safeguard, Justice Ginsburg wrote, is the proper
subject of incorporation because it is 'fundamental to our
scheme of ordered liberty,' with '[d]eep root[s] in our history
and tradition.' i3 Surveying how prohibition of excessive
fines dated back to the Magna Carta through early U.S. state
constitutions and the adoption of the Fourteenth Amend-
ment, Justice Ginsburg concluded that the historical and
logical case for... [incorporation]... is overwhelming.4
Justice Gorsuch concurred with the majority opinion,
writing that as an original matter ... the appropriate
vehicle for incorporation may well be the Privileges
and Immunities Clause of the Fourteenth Amendment,
not the Due Process Clause, as the Court has long
assumed.5 He reasoned, however, that regardless of the
precise vehicle, there can be no serious doubt that the
Fourteenth Amendment requires the States to respect the
freedom from excessive fines enshrined in the Eighth
Amendment.'6 Justice Thomas concurred in the judg-
ment and echoed the view of Justice Gorsuch, providing
an extended argument in support of his view that the
Privileges and Immunities Clause, not the Due Process
Clause, of the Fourteenth Amendment is the constitu-
tional basis for applying the protection against excessive
fines to the states.'7
In deciding Timbs, the Court did several things. First,
doctrinally, it held for the first time that the Excessive Fines
Federal Sentencing Reporter, Vol. 32, No. 1, pp. 3-7, ISSN 1053-9867, electronic ISSN 1533-8363.
© 2019 Vera Institute of Justice. All tights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press's Reprints and Permissions web page,
https://www.ucpress.edu/joumals/reprints-penmissions. DOI: https://doi.org/Io.I525/fsr.2oI9.32..3.
FEDERAL SENTENCING REPORTER - VOL. 32, NO. 1 OCTOBER 2019
WAYNE A.
LOGAN
Gary and Sallyn
Pajcic Professor of
Law, Florida State
University College of
Law](ViewImageLocal?handle=hein.journals/fedsen32&div=5&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Timbs v. Indiana: Toward the Regulation of Mercenary Criminal Justice
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most