On 20 February, the US Supreme Court unanimously held, in the case of Timbs v. Indiana, 586 U.S. ___ (2019), that the prohibition on excessive fines contained in the 8th Amendment applied to States (as well as the federal government) and prevented Indiana from confiscating a Land Rover worth $42,000 just because it had been used during a drug transaction. The judgment is significant because it is a rare case of the Court limiting States’ civil asset forfeiture powers but also because of its discussion of the Bill of Rights’ selective incorporation process.
Civil asset forfeiture is a legal tool used by law enforcement to confiscate private property from persons suspected of illegal activity without necessarily charging them with any wrongdoing. According to some estimations, between 2011 and 2014, local and state agencies confiscated $2.5 billion in approximately 62,000 cash seizures conducted ‘without search warrants or indictments’ (The Washington Post). When it comes to the federal government, in 1985, the Justice Department’s Assets Forfeiture Fund brought in $27 million but by 2017, that figure skyrocketed to $1.6 billion (The Atlantic). In Timbs v. Indiana, 586 U.S. ___ (2019), Justice Ginsburg, writing for the majority, referred to the protection from excessive fines as a historically important safeguard recognised as early as the Magna Carta. However, the effective application of the Excessive Fine Clause of the 8th Amendment is a novelty in the Court’s jurisprudence as the Court found a violation of the Excessive Fine Clause for the first time in 1998, in United States v. Bajakajian, 524 U.S. 321 (1998).
The 8th Amendment prohibits, among other things, ‘excessive fines [being] imposed’. In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Supreme Court held that excessive fines were defined as fines ‘so grossly excessive as to amount to a deprivation of property without due process of law’. In Austin v. United States, 509 U.S. 602 (1993), the Court ruled for the first time that the Excessive Fines Clause applied to civil asset forfeiture conducted by the federal government, but the case was silent on its potential application to States’ actions.
Originally, just as the other Amendments constituting the Bill of Rights, the 8th Amendment was meant to apply only against the federal government. After the Civil War, with the enactment of the 14th Amendment, the Courts began to apply various safeguards contained in the Bill of Rights against States as well as the federal government. Throughout that time, the Courts usually invoked the Due Process Clause of the 14th Amendment as the provision rendering the Bill of Rights applicable against States. In Timbs v. Indiana, 586 U.S. ___ (2019), 7 Justices, in the opinion written by Justice Ginsburg, held that the 8th Amendment applied against the State of Indiana by virtue of the Due Process Clause. On the other hand, Justice Thomas, while concurring in the outcome of the case, produced a separate opinion on the issue of the selective incorporation where he explained that the application of the Bill of Rights against States was possible by virtue of the Privileges or Immunities Clause of the 14th Amendment, rather than the Due Process Clause. Justice Neil Gorsuch, who joined the majority opinion, also wrote a concurring opinion, agreeing with Justice Thomas on the issue of the selective incorporation.
The ruling is expected to have a considerable impact on the the use of civil asset forfeiture as it establishes a strong protection against its abuse, now applicable to both the federal and States’ governments. The case also signals potential future discussions among Justices on the effect of the 14th Amendment on the selective incorporation.