« Thomas Berry on the Whitaker Appointment
Michael Ramsey (With Update by Andrew Hyman)
| Main | John Yoo & James Phillips on Originalism and the Religion Clauses
Michael Ramsey »

11/29/2018

Timbs Oral Argument Followup
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures.  

[Oral argument in the Timbs case] makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states. The justices also seem likely to rule that at least some state asset forfeitures violate the Clause. Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation. It is hard to say, however, what - if anything - the Court will do on the question of how to define "excessive." The justices could well decide to leave it to the lower courts, at least for the time being.

On the incorporation question, all the justices who spoke seemed to favor incorporating this right against the states. This is not surprising, since it would be anomalous to incorporate nearly all of the rest of the Bill of Rights against states (including other parts of the Eighth Amendment, such as the Excessive Bail Clause), yet leave out the Excessive Fines Clause. The justices seem to agree on this fundamental point. As Neil Gorsuch put it in today's argument, "[w]e all agree that the Excessive Fines Clause is incorporated against the states." Similarly, Justice Brett Kavanaugh asked Indiana Solicitor General Thomas Fisher: "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?"

...

Fisher, in fact, made little effort to oppose incorporation of the Clause. Instead, he argued that, while it might be incorporated as a general rule, it should not be applied to "in rem" forfeitures of property (where the proceeding is technically against property allegedly used in a crime, rather than against the owner). On this theory, the Excessive Fines Clause applies to "punitive" fines that target the owner, but not civil forfeitures that seek to confiscate property without imposing any penalty on the owner as such.

The justices seemed skeptical of this argument, too. Among other things, it would enable states to impose massive penalties on defendants simply by relabeling fines as in rem forfeitures. ...

As Justices Gorsuch and Sonia Sotomayor pointed out, modern civil asset forfeitures have a massive punitive component, which cannot be eliminated simply by labeling them as "in rem" proceedings. Similarly, Justice Ruth Bader Ginsburg emphasized that "whether you label it in rem or in personam, let's remember that .. things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things."

...

Various justices also noted that the Supreme Court has already ruled, in Austin v. United States (1993), that some federal in rem forfeitures are covered by the Excessive Fines Clause - thos that are "punitive" in nature. If the Clause is incorporated against the states, the same logic should apply to state forfeitures, as well.

SCOTUSblog's post-argument assessment, by Amy Howe, is similar: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states.