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Thomas Ascik on Timbs v. Indiana
Michael Ramsey

At Liberty Law Blog, Thomas Ascik has a counterpoint on Timbs v. Indiana: Asset Forfeiture, Incorporation, and the Fourteenth Amendment.  Here is the conclusion:

Overall, it seems that with the hostility bordering on sarcasm that Indiana’s counsel experienced and after the Austin case making federal forfeitures subject to the Excessive Fines Clause and the McDonald case incorporating the Second Amendment, the Court is now going to incorporate the Excessive Fines Clause into the Fourteenth Amendment. The Court is probably merely going to declare the incorporation of the Excessive Fines Clause, leaving it to later to hear cases about what specifically ordered forfeitures were “excessive.”

That prospective and new area of law is going to be freewheeling and subjective for trial courts, for, unlike criminal statutes that clearly identify the possible sentences and range of sentences, there is no statutory definition about a range of appropriate and “proportional” forfeitures. The probable result is that trial courts are going to minimize forfeitures.

The Timbs case also illustrates how effective public campaigns about issues can be and how those campaigns can turn policy issues into constitutional issues. Presumably referring to some kind of public consensus, Timbs’ counsel made several abstract and gratuitous remarks about forfeiture today. He said that “every officer on the street now has the power to strip people of their property,” and ignoring Indiana’s excessive fines clause in its state constitution and as well as in probably every state’s constitution, Hottot said that “the citizens of Indiana today don’t enjoy protection from excessive fines of any kind” and what was needed was a “guarantee to all 330 million Americans a right to a defense under the Excessive Fines Clause.” And in scolding Indiana’s counsel, Justice Gorsuch said that with respect to forfeiture, “we’re dealing with a world that is difference in kind” from the past. Likewise, Justice Sotomayor made a general reference to “these forfeitures that are occurring today,” many of which “seem grossly disproportionate to the crimes being charged.”

There is nothing in the record that indicates that plaintiff Timbs pursued a remedy against this state forfeiture action under Section 16 of Indiana’s state Bill of Rights which not only prohibits “excessive fines” but also holds that “All penalties shall be proportioned to the nature of the offense.” There is no such clause about proportionality in the federal Bill of Rights. In other words, there was a much better basis for an Indiana constitutional case than a federal one. And as discussed above, “proportionality” was a major issue in both the briefs and the oral arguments in Timbs.

Why not federalism? Civil forfeiture has become a major issue not only at the federal level but also in several states. And North Carolina, New Mexico, and Nebraska have abolished it altogether. The answer is that nothing surpasses the intellectual intoxication and will to power of a federal constitutional lawsuit—democracy be damned.