Slate/Mark Joseph Stern: The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit

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The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit

By Mark Joseph Stern
Feb 20, 20191:40 PM
Ruth Bader Ginsburg
Supreme Court Associate Justice Ruth Bader Ginsburg poses with fellow justices during their official group photo at the Supreme Court on Nov. 30 in Washington,
Jabin Botsford/the Washington Post via Getty Images

The Supreme Court struck an extraordinary blow for criminal justice reform on Wednesday, placing real limitations on policing for profit across the country. Its unanimous decision for the first time prohibits all 50 states from imposing excessive fines, including the seizure of property, on people accused or convicted of a crime. Rarely does the court hand down a ruling of such constitutional magnitude—and seldom do all nine justices agree to restrict the power that police and prosecutors exert over individuals. The landmark decision represents a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far.
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Wednesday’s ruling in Timbs v. Indiana, authored by Justice Ruth Bader Ginsburg, is sharp and concise. It revolves around a single question of extraordinary importance. The Eighth Amendment guarantees that no “excessive fines” may be “imposed,” an ancient right enshrined in the Magna Carta and enthusiastically adopted by the Framers. But the Bill of Rights originally applied only to the federal government, not the states. After the Civil War, the 14th Amendment was ratified to apply these rights to the states, which had engaged in grotesque civil rights violations to perpetuate slavery. The Supreme Court, however, slowly applied (or “incorporated”) these rights against the states one by one, not all at once. And before Timbs, it had never incorporated the Excessive Fines Clause—allowing states to exploit their residents for huge sums of cash and property.

They did so through civil asset forfeiture, a process that we would call theft in any other context. Here’s how it works: Prosecutors accuse an individual of a crime, then seize assets that have some tenuous connection to the alleged offense. The individual need not be convicted or even charged with an actual crime, and her assets are seized through a civil proceeding, which lacks the due process safeguards of a criminal trial. Law enforcement can seize money or property, including one’s home, business, or vehicle. It gets to keep the profits, creating a perverse incentive that encourages police abuses. Because the standards are so loose, people with little to no involvement in criminal activity often get caught up in civil asset forfeiture. For instance, South Carolina police tried to seize an elderly woman’s home because drug deals occurred on the property—even though she had no connection to the crimes and tried to stop them.
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Tyson Timbs is not quite so sympathetic, but his story illustrates the injustice of limitless forfeiture. In 2015, Timbs was charged with selling heroin to undercover officers in Indiana. He pleaded guilty. A trial court sentenced him to a year of house arrest, five years’ probation, and an addiction-treatment program, which helped him overcome his opioid addiction. The court also ordered Timbs to pay $1,203 in fines and fees. So far, so fair.

But then Indiana hired a private law firm to seize Timbs’ Land Rover, which he used to transport heroin. The firm filed a civil suit to obtain the car, valued at $42,000—more than four times the maximum fine for his drug conviction. (Under Indiana law, the state and its chosen firm would get to split the profits.) Timbs fought back, alleging that the forfeiture constituted an “excessive fine” under the Eighth Amendment, applied to the states through the 14th Amendment. The Indiana Supreme Court disagreed, holding that SCOTUS had never incorporated that particular clause against the states.

At oral arguments in November, multiple justices seemed incredulous that Indiana even raised that argument. “Here we are in 2018, still litigating incorporation of the Bill of Rights,” Justice Neil Gorsuch scoffed to Indiana Solicitor General Thomas Fisher. “Really? Come on, General.” And on Wednesday, every justice agreed that the 14th Amendment applies the guarantee against excessive fines to the states. In her majority opinion, Ginsburg traced the right back to the Magna Carta through the English Bill of Rights and the Virginia Declaration of Rights, all of which heavily influenced the U.S. Constitution. By the time the 14th Amendment was ratified, 35 of the 37 states explicitly barred excessive fines. And during debate over ratification, congressmen noted that Southern states were using punitive fines to subjugate newly freed blacks. The framers of the 14th Amendment plainly intended to incorporate the Excessive Fines Clause to rein in these “harsh inflictions … almost reenacting slavery.”

“In short,” Ginsburg wrote, surveying this evidence, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.” She also swatted down Indiana’s fallback argument that the clause does not apply to proceedings over an individual’s property, holding that these forfeitures still qualify as “fines” that trigger constitutional scrutiny. Gorsuch and Justice Clarence Thomas wrote separately to quibble with a doctrinal matter: They argued that the Privileges or Immunities Clause is the proper vehicle through which to incorporate the Bill of Rights—not the Due Process Clause, as is generally accepted. This cavil has no bearing on the outcome of the case.

In one sense, Ginsburg’s opinion is sweeping—it finally opens the federal courthouse door to victims of civil asset forfeiture, like Timbs, who believe they’ve been wronged. But Wednesday’s decision leaves some questions unanswered. The court has already ruled that when the federal government seizes money or property, the fine must not be “grossly disproportional to the gravity of [the] offense.” Presumably, this same standard now applies to the states. But when is a forfeiture grossly disproportionate? Does Indiana’s seizure of Timbs’ Land Rover meet this standard? Ginsburg didn’t say, instead directing the Indiana Supreme Court to evaluate the question. Prepare for a flood of litigation urging federal courts to determine when civil asset forfeiture crosses this constitutional line.

There is, regardless, a great deal to celebrate in Timbs v. Indiana. At long last, SCOTUS has put a federal check on states’ multimillion-dollar civil asset forfeiture schemes. People like Tyson Timbs will have a fighting chance of getting their stuff back when the states seize it for profit. The Supreme Court is unlikely to end policing for profit in one fell swoop. But on Wednesday, it sent a clear message to states like Indiana that the days of largely unregulated abusive forfeiture are over.
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