Tyson Timbs of Marion, IN, may have combined lack of impulse control, an injury, and bad luck to drive a spike through the heart of civil asset forfeiture as practiced by many rapacious jurisdictions today and which was encouraged and abetted by former Attorney General Jeff Sessions.

This is how the story unfolds:

Timbs suffered a foot injury and, as with so many other people, the use of legal hydrocodone to suppress pain smoothly transitioned from a medical need to addiction. One of his dealers way out of hydrocodone when Timbs showed up to buy and was persuaded to try heroin instead. Needless to say, Timbs developed a taste for the substitute and became a junkie. According to court records, he managed to clean himself up for a short while but persistent unemployment drove him back to drugs. The only good luck he had was that about the time of his relapse in 2015, his father died leaving him $73,000 in life insurance proceeds. Timbs used $42,000 to buy a used Land Rover and soon burned through the remainder. He looked around for ways to fund his addiction and an acquaintance, who moonlighted as a police confidential informant, connected Timbs with heroin dealers who set Timbs up as a franchisee.

His career as a pharmaceutical entrepreneur lasted two weeks. During that time he made two sales to undercover narcotics officers–for $225 and $160, respectively–while he was heading off to a third sale…also to narcs…he was arrested and charged with two counts of selling heroin and one count of conspiracy to commit theft. His Land Rover was seized on the spot.

Two years later, Timbs pleaded guilty to one drug sale and the conspiracy charge and he was sentenced to one year home detention and five years supervised probation, including a court-ordered rehab program. He was fined:

investigation costs ($385), an interdiction fee ($200), court costs ($168), a bond fee ($50), and $400 for drug-and-alcohol assessment through the probation department.

Now an interesting thing happened. While Timbs was awaiting his rendezvous with justice, his Land Rover was undergoing civil asset forfeiture proceedings. The Land Rover drew a judge who took his job seriously:

The court found that Petitioner purchased the vehicle legally, using his father’s life-insurance proceeds, but later used it to “transport . . . heroin back to Marion.” Pet. App. 28 ¶¶ 2–3. Based on the record, the court determined that forfeiture would be “grossly disproportional to the gravity of [Petitioner’s] offense” and thus unconstitutional under the Eighth Amendment’s Excessive Fines Clause. Pet. App. 29–30 ¶¶ 6–9; see generally Hudson v. United States, 522 U.S. 93, 103 (1997) (“The Eighth Amendment protects against excessive civil fines, including forfeitures.” (citing Austin v. United States, 509 U.S. 602, 622 (1993)). “While the negative impact on our society of trafficking in illegal drugs is substantial,” the court acknowledged, “a forfeiture of approximately four (4) times the maximum monetary fine is disproportional to [Petitioner’s] illegal conduct.” Pet. App. 30 ¶ 9.

The state appealed and the Indiana Supreme Court overturned the ruling based in part on its conclusion that the Eighth Amendment had not been incorporated.

Last week, the Supreme Court took a look at the main issue, the incorporation of the Eighth Amendment, and the side issue of what constituted an excessive fine. The incorporation argument didn’t go very far:

Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”

The positive news was that five members of the court–Gorsuch, Sotomayor, Thomas, Ginsburg and Breyer–seemed uncomfortable with the direction civil asset forfeitures have gone:

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 Justice Stephen Breyer explained, Indiana’s theory would open up a giant loophole in the Excessive Fines Clause: “what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy [he was driving]?” Fisher was forced to concede that would indeed be permissible under his approach. He even admitted it would apply if the person charged with speeding was only 5 MPH above the speed limit.

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.”

Last year, Justice Clarence Thomas (who, as is his usual oral argument practice did not speak today), wrote an opinion in which he urged the Supreme Court to take up the asset forfeiture issue and emphasized that “Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes” and suggested that the Court should “align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.” Presumably, that includes subjecting civil forfeitures to the constraints of the Excessive Fines Clause.

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.

If the Supreme Court agrees to apply some guidance to what constitutes an “excessive fine” in cases where the forfeiture is part of a criminal proceeding, there is a good chance that the egregious practice of simply seizing property without any allegation of a crime will be abolished.

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