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Protections against excessive fines date back to Magna Carta. Why is this still an issue?

What you’ll read today

  • Spotlight: Protections against excessive fines date back to Magna Carta. Why is this still an issue?

  • Inside ‘The stop-and-frisk capital of America’

  • The Appeal Podcast: Prisoners with disabilities fight for equal rights

  • Microsoft asked for facial recognition regulation but now says bill is too restrictive

  • Former Rikers doctor investigates why incarceration is so deadly

  • Cook County, Illinois, will destroy its gang database

In the Spotlight

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]

Stories From The Appeal


Photo illustration by Anagraph. Photo via Miami Gardens Police Department.

Inside ‘The Stop-And-Frisk Capital of America’: Claims ranging from sexual assault to dishonesty haunt the troubled Miami Gardens Police Department, which once lost lost two chiefs in about one year over misconduct allegations. [Meg O’Connor]

The Appeal Podcast: Prisoners With Disabilities Fight for Equal Rights: Appeal contributor Keri Blakinger discusses an ongoing lawsuit in New York State and the broader movement across the country to give prisoners with disabilities access to the same facilities and opportunities as everyone else. [Adam H. Johnson]

Stories From Around the Country

Microsoft asked for facial recognition regulation but now says pending bill is too restrictive: Earlier this month, The Daily Appeal commended Microsoft President Brad Smith for urging lawmakers to set rules on facial-recognition technology to prevent a “race to the bottom” that could threaten the privacy and liberties of civilians. But now the company says a proposed bill would go too far. The bipartisan bill would ban local and state governments from using facial recognition “until certain conditions are met, including a report by the state attorney general certifying that systems in use are equally accurate for people of differing races, skin tones, ethnicities, genders, or age,” writes Tom Simonite for Wired. “Microsoft has endorsed a different bipartisan privacy bill, modeled on European data laws,” which would be less restrictive, requiring notification before using facial recognition and government agencies to obtain a court order to watch for specific people in public, absent an emergency. The conflict may turn out to be a “preview of similar battles elsewhere in the world.” [Tom Simonite / Wired]

Former Rikers doctor investigates why incarceration is so deadly: Several years ago, Homer Venters, the former chief medical officer for New York City’s Correctional Health Services, sought to find out how many jail deaths are “jail-attributable.” The answer: a lot. “Reporters have virtually no access to the jails on Rikers Island, but, for many years, Venters had a rare vantage point from which to observe its inner workings,” Jennifer Gonnerman writes for the New Yorker. Venters’s new book, “Life and Death in Rikers Island,” examines “one of the most overlooked aspects of mass incarceration: the health risks of being locked up.” A simple change, like when, in 2013, Rikers stopped allowing incarcerated people to walk to clinics without a guard, meant people missed appointments nearly half the time. Medical staff felt a “dual loyalty” to patients and the system, which played out when mental-health workers were asked to approve someone for solitary confinement or, more dramatically, when guards expected medical staff to literally look the other way when they beat people up. Sometimes, the most injured people would be taken away from doctors to hide evidence of abuse. After one such occasion, Venters searched for a beaten patient: “I found him in a remote part … and heard him sobbing before I saw him in his cell.” [Jennifer Gonnerman / The New Yorker]

Cook County, Illinois, will destroy its gang database: “Over the years, a gang database maintained by the Cook County Sheriff’s Office grew to include more than 25,000 names, as well as countless errors,” Mick Dumke reports for ProPublica. “Now it’s on the verge of being dismantled.” Under an ordinance approved yesterday, the sheriff’s office for the county that includes Chicago would be prohibited from using or sharing its Regional Gang Intelligence Database, and ultimately, it must destroy it. The office is also barred from funnelling the information into any gang database maintained by outside agencies. “The terms ‘gang association’ or ‘gang membership’ have become a form of criminalizing mostly young people of color,” county Commissioner Alma Anaya said. “We will serve as a national model.” Dumke writes, “An earlier draft of the ordinance would have required the sheriff’s office to send written notifications to those individuals. But that language was removed amid concerns from the sheriff and some commissioners that it could expose the county to lawsuits.” [Mick Dumke / ProPublica]

Thanks for reading. Have a great weekend.

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