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Protections against excessive fines date back to Magna Carta. Why is this still an issue?
In a landmark ruling this week that almost everyone is celebrating, the U.S. Supreme Court limited the power of state and local police to seize people’s property. It is unclear what is most remarkable about Timbs v. Indiana: that the Court reached a unanimous decision, that the decision curbed police power, or that the Eighth Amendment’s Excessive Fines Clause was even taken up at all. According to UCLA law professor Beth Colgan, who has researched and written extensively about the history of the clause and its relevance today, this is only the fifth case in which the Court has ever ruled on its meaning or scope.
The court ruled in favor of Tyson Timbs, an Indiana man suffering from substance use disorder who pleaded guilty to selling $225 of heroin to undercover police officers. He was sentenced to one year of house arrest and five years of probation, and was ordered to pay $1,200 in fees and fines. Police also seized Timbs’s $42,000 Land Rover, saying he had used it to commit crimes. Timbs had bought the car using proceeds from his father’s life insurance policy. The lower court denied forfeiture, observing that because the car was worth more than four times the maximum $10,000 fine for his conviction, forfeiture would be “grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause,” Justice Ruth Bader Ginsburg wrote. But the Indiana Supreme Court reversed, holding that the “Excessive Fines Clause constrains only federal action and is inapplicable” to state action. [Timbs v. Indiana]
For Timbs’s car to be seized, he would not have to have been convicted of any crime at all. Civil asset forfeiture doesn’t depend on a criminal conviction, which has led to such flagrant abuses as police stopping people and rifling through their wallets for cash. Some cops threaten to bring criminal charges if people contest the seizure.
The question before the Supreme Court was narrow: Does the Excessive Fines Clause apply to the states? The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “Two of those commands — regarding bail and cruel and unusual punishments — have been deemed to apply to state and local governments, but until now, the ban on excessive fines had not,” Robert Barnes wrote for the Washington Post. [Robert Barnes / Washington Post]
Now it has. Like the rest of the amendment, “the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority,” wrote Ginsburg. “This safeguard, we hold, is fundamental to our scheme of ordered liberty, with deep roots in our history and tradition.” [Timbs v. Indiana]
In her opinion, Ginsburg traced the “venerable lineage” of the clause “back to at least 1215, when Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive a person of his or her livelihood.” Ginsburg continued: “Despite Magna Carta, imposition of excessive fines persisted,” particularly among 17th century Stuart kings, who used large fines to “raise revenue, harass their political foes, and indefinitely detain those unable to pay.” [Timbs v. Indiana]
This pattern was later repeated in the U.S., where the federal and state constitutions limited excessive fines from the outset. Still, “abuses continued,” Ginsburg wrote. “Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. When newly freed slaves were unable to pay imposed fines, states often demanded involuntary labor instead.” [Timbs v. Indiana]
Today, all 50 states have a constitutional provision prohibiting excessive fines. But abuses continue. In a 2018 article, Professor Colgan wrote, “In recent years, the use of economic sanctions—statutory fines, surcharges, administrative fees, and restitution—has exploded in courts across the country.” It is a way to fund law enforcement without raising taxes. Challenges to these abuses have generally relied on the 14th Amendment, but have proven limited. Colgan’s suggestion: “A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors’ prison crisis lies in the Eighth Amendment’s Excessive Fines Clause.” [Beth Colgan / UCLA Law Review]
I asked Colgan why, despite widespread protections against excessive fines, we have seen them imposed again and again, often against the most vulnerable. “There’s no right to counsel in most of these cases,” she said. “And these are complicated claims to bring, so without an attorney to bring them, it makes it much less likely that the law gets developed.”
Also, she added, “it’s very rarely taught in law school.” Ideally, the Supreme Court decision will bring “some attention to the possibility of using the clause in order to push back on extreme sentencing,” she added. “Now there’s renewed attention to this being a tool in the toolbox.” Can this tool be applied successfully to other abuses? It’s unclear. Anthony Kennedy was not the greatest champion of the excessive fines clause. “The question is whether Kavanaugh will follow in Kennedy’s footsteps,” Colgan said, referring to Kennedy’s successor on the court, Justice Brett Kavanaugh.
In a 2017 decision, Justice Clarence Thomas wrote that “this system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.” His opinion cited a 2013 article written by Sarah Stillman of The New Yorker.
I asked Stillman how she felt when she heard that her work had been cited by the Supreme Court. “I can’t say I was expecting a citation from Clarence Thomas,” Stillman said, “but I also think it speaks to the fact that there are so few issues of relative consensus. But everyone who looks at this can see that this is not working and it’s not fair.” Stillman said she wonders whether this case will open up the conversation about excessive fines and fees in general, and whether it will serve as a window onto other abuses, including racial profiling, misaligned incentive structures, policing for profit, and “defendant-funded justice.”
Who actually defends civil asset forfeiture? Law enforcement. But in so doing, authorities tend not to even claim that it serves the interests of justice. A recent investigation found that in South Carolina, “law enforcement agencies seized more than $17 million” in civil asset forfeiture, overwhelmingly from young Black men. Most of the money ended up “enriching the police departments’ bank accounts.”
Jarrod Bruder, the executive director of the South Carolina Sheriff’s Association was untroubled by the findings. He warned that without the possibility of profit, officers might not do their jobs zealously. If police don’t get to keep the money from forfeiture, he wondered, “What is the incentive to go out and make a special effort?’” [Nathaniel Cary, Anna Lee, and Mike Ellis / Greenville News]
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