State of Indiana, Appellant (Plaintiff) –v– Tyson Timbs, Appellee (Defendant)
Supreme Court Case No. 27S04-1702-MI-70
Indiana Supreme Court
October 28, 2019
Argued: June 28, 2019 | Appeal from the Grant Superior Court, No. 27D01-1308-MI-92 | The Honorable Jeffrey D. Todd, Judge | On Remand
Opinion by Chief Justice Rush
Justices David, Massa, and Goff concur.
Justice Slaughter dissents with separate opinion.
Rush, Chief Justice.
Civil forfeiture of property is a powerful law-enforcement tool. It can be
When a civil forfeiture is even partly punitive, it implicates the Eighth Amendment’s protection against excessive fines. And since that safeguard applies to the states through the Fourteenth Amendment, we now face two questions left open by the Supreme Court of the United States. First, how should courts determine whether a punitive, in rem forfeiture is an excessive fine? And second, would forfeiture of Tyson Timbs’s vehicle be an excessive fine?
We answer the first question with an analytical framework similar to those of almost all courts to have addressed the issue. For the second question, we remand for the trial court to determine, based on that framework, whether Timbs has cleared the hurdle of establishing gross disproportionality, entitling him to relief.
Facts and Procedural History
Tyson Timbs started taking prescription hydrocodone pills for foot pain in 2007. He soon became addicted and supplemented his prescription with pain pills he bought on the street. When those became unavailable, he turned to heroin.
Despite addiction treatment, Timbs continued to use; and when he failed a drug screen, he lost his job. He got clean for a while but began using again after his father died in 2012.
From his father’s life insurance policy, Timbs received approximately $73,000. With about $42,000 of those proceeds, he purchased a Land Rover. He spent the rest on clothes, shoes, and heroin, with over $30,000 going to the drugs.
Timbs would obtain heroin by regularly driving his Land Rover sixty to ninety miles to meet his supplier. These trips accounted for most of the 16,000 miles Timbs put on the vehicle over four months. Eventually, a confidential informant told police officers on a drug task force that Timbs would possibly sell heroin. Timbs had never sold before, but the officers devised a controlled-buy plan.
The first buy took place on May 6, 2013, at an apartment near Timbs’s residence. Timbs drove his Land Rover to the apartment, bringing two grams of heroin with him for the sale. At the apartment, Timbs gave the drugs to the confidential informant, and an undercover police officer gave Timbs the agreed-upon $225. Before Timbs departed in the Land Rover, the officer mentioned contacting Timbs for another sale.
About two weeks later, a second buy took place at a gas station close to Timbs’s residence. Timbs arrived on foot with two grams of heroin, which he gave to an undercover officer for $160.
Over the next week, officers set up a third buy, which was to take place at a hotel. But the sale did not occur. Before Timbs arrived at the meeting place on the scheduled day, police stopped him in his Land Rover for a traffic violation. Officers immediately seized the vehicle and took Timbs and his passenger into custody. Neither individual had heroin with him in the vehicle. Without drugs for the sale, they had planned to drive off with the purchase money once the buyer handed it over.
The State charged Timbs with three offenses: two counts of Class B felony dealing in a controlled substance,
After entering into a plea agreement, Timbs pleaded guilty to one count of dealing
In addition to prosecuting the criminal case against Timbs, the State filed a civil complaint for forfeiture of the Land Rover, bringing the action against the property, or in rem, with Timbs as a named party in interest. In its complaint, the State alleged:
- On or about May 31, 2013, officers of the . . . Drug Task Force, seized from the Defendant, TYSON TIMBS, One (1) 2012 Land Rover LR2 . . . in Grant County, Indiana.
- On said date and at said place, the Defendant, TYSON TIMBS, had in his possession, the above described vehicle, said vehicle had been furnished or intended to be furnished by Defendant, TYSON TIMBS, in exchange for an act that is in violation of a criminal statute, or used to facilitate any violation of a criminal statute or is traceable as proceeds of the violation of a criminal statute under Indiana law, as provided in
I.C. 34-24-1-1 . - The Defendant, TYSON TIMBS, is the owner of the vehicle.
After a hearing, the court made factual findings and entered judgment in Timbs’s favor. The court reasoned that forfeiture of the vehicle would be grossly disproportional to the gravity of Timbs’s dealing offense—which carried a maximum statutory fine of $10,000 (about one-fourth the Land Rover’s market value at the time Timbs purchased it five months earlier)—so the forfeiture would violate the Eighth Amendment’s Excessive Fines Clause.
The State appealed, and our Court of Appeals affirmed. State v. Timbs, 62 N.E.3d 472, 473, 477 (Ind. Ct. App. 2016). We granted the State’s petition to transfer and reversed. State v. Timbs, 84 N.E.3d 1179, 1180–81, 1185 (Ind. 2017). Without reaching the excessiveness question, we held that the Excessive Fines Clause of the Eighth Amendment had not been incorporated against the States.1 Id. at 1180–81.
Timbs petitioned the Supreme Court of the United States for certiorari. The Court granted his petition and held that the Excessive Fines Clause applies to the States through the Fourteenth Amendment. Timbs v. Indiana, 139 S. Ct. 682, 687 (2019). The Court accordingly vacated our prior decision and remanded the case back to us. Id. at 691.
We ordered additional briefing and oral argument and now address the merits of the constitutional issue.2
Timbs asserts that the statute under which the State sought forfeiture of the Land Rover is unconstitutional as applied to the facts of this case. His claim involves several layers of review.
We accept the trial court’s factual findings unless they are clearly erroneous.
Discussion and Decision
The Eighth Amendment guarantees that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
At issue is the Excessive Fines Clause, which applies only to fines, or “payment[s] to a sovereign as punishment for some offense.” Browning-Ferris, 492 U.S. at 265. Because the Clause has received little attention in Supreme Court precedent, courts in recent decades have been grappling with the question of what makes an in rem fine excessive. We address that question today—finding guidance in cases from the Supreme Court, especially Austin and Bajakajian, and in the history of both the Excessive Fines Clause and forfeitures.
But first, we must determine whether forfeiture of Timbs’s Land Rover is a fine, bringing it within the scope of the Excessive Fines Clause.
I. Forfeiture of Timbs’s vehicle is a fine.
The parties agree that forfeiture of Timbs’s Land Rover is at least partly punitive, making it a fine subject to the Excessive Fines Clause. We also agree.
The State sought forfeiture of the Land Rover under Indiana Code section 34-24-1-1(a)(1)(A). This statute authorizes use-based forfeitures—forfeitures based on the property’s use in a crime—of vehicles used in the commission of certain drug offenses. Specifically, the statute states that “[a]ll vehicles” may be seized for forfeiture “if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of . . . [a] controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of” the listed drug offenses.
The question is whether a use-based forfeiture authorized by this statute is punitive and thus a fine. In Austin v. United States, the Supreme Court set out a way to answer that question. 509 U.S. 602 (1993). There, the Government sought forfeiture—under two statutory provisions—of a mobile home and auto shop, based on the property’s use to commit or facilitate a federal drug offense. Id. at 604–05, 605 n.1, 620 (forfeiture under
In reaching this conclusion, the Court took a categorical approach, asking whether the two statutory provisions, “as a whole,” served a punitive purpose. Id. at 622 n.14; see United States v. Ursery, 518 U.S. 267, 287 (1996) (noting that Austin’s approach is “wholly distinct from” a case-by-case analysis). The Court found that they did for two key reasons: first, the provisions focused on the owner’s involvement in a crime (by linking the forfeiture to specific offenses and by including an “innocent owner” defense); and second, the value of the forfeitable property bore no relationship to reparative costs. Austin, 509 U.S. at 619–22. Thus, forfeitures under the two provisions were fines. Id. at 622. And it did not matter whether, in some cases, forfeitures under the provisions would be purely remedial. Id. at 622 n.14. The Court’s categorical analysis would still identify those forfeitures as fines, though their entirely remedial character would make them not excessive. Id.
Like the provisions in Austin, Indiana Code section 34-24-1-1(a)(1)(A) is punitive by design. The statute focuses on the owner’s involvement in a crime—as it ties each forfeiture to the commission of a drug offense, and an accompanying “innocent owner” provision guards against forfeiting vehicles from owners who are uninvolved in the underlying offense. See
Unsurprisingly, then, the State acknowledged at oral argument that the statute has punitive as well as remedial functions.
Thus, forfeitures under Section 1(a)(1)(A) are fines to which the Excessive Fines Clause applies. Because forfeiture of Timbs’s Land Rover is such a fine, we now turn to the contours of the protection against excessiveness.
II. When is a use-based in rem fine excessive?
The parties disagree about how to measure excessiveness.
The State argues that the excessiveness of an in rem fine turns on a single determination: if the property was an instrument of crime, then its forfeiture is not excessive—full stop.3 The State reasons that, given the history of in rem forfeitures, the Excessive Fines Clause “requires only that the property forfeited be a genuine criminal instrumentality.” State’s Opening Br. at 11.
Timbs urges us to recognize that the Excessive Fines Clause includes both an instrumentality limitation and a proportionality limitation. He says analyzing excessiveness entails two main questions. Was the property instrumental in the underlying crime? And, if so, would the property’s forfeiture be grossly disproportional to the gravity of the offense? Timbs asserts that these inquiries focus on several considerations—how closely the property and predicate offense are linked; the claimant’s
To understand and resolve the disagreement over the appropriate measure of excessiveness, we first review Supreme Court guidance in Austin and Bajakajian.
A. Supreme Court precedent provides guideposts.
In Austin, the Court recognized that the Excessive Fines Clause applies to some in rem forfeitures, given those forfeitures’ punitive nature. 509 U.S. at 621–22. In doing so, Austin confirmed that, even if in rem forfeitures were not historically deemed fines (thus placing them beyond the Excessive Fines Clause), they were understood, at least in part, as punishments. Id. at 618. Likewise, in rem forfeitures today may be punitive. So, after Austin, historical legal fictions behind traditional in rem forfeitures do not prevent courts from recognizing when a modern in rem forfeiture is a fine. See id. at 621–22.
But Austin did not prescribe how to determine the excessiveness of in rem fines. Id. at 622–23. It instead left that question to the lower courts, emphasizing that its decision “in no way limits” consideration of multiple factors in addition to whether the confiscated property has a close enough relationship to the offense. Id. at 623 n.15.
Five years after Austin, the Court in Bajakajian supplied a method for determining the excessiveness of an in personam fine—a punitive forfeiture obtained through an action against a person rather than against the property itself. United States v. Bajakajian, 524 U.S. 321, 336–37 (1998). There, the Court recognized that the principle of proportionality between crime and punishment is central to whether a fine is unconstitutional under the Excessive Fines Clause. Id. at 334 (citing Austin, 509 U.S. at 622–23 and Alexander v. United States, 509 U.S. 544, 559 (1993)). And to determine whether certain forfeitures are excessive fines, a gross-disproportionality standard, as opposed to a strict-proportionality one, is appropriate. Id. at 336. Though Bajakajian did not concern an in rem forfeiture, portions of its reasoning extend to modern in rem fines as well. Id. at 331 n.6, 334–37.
In Bajakajian, the forfeiture was based on a defendant’s conviction for failing to report that he was transporting over $10,000 in currency out of the United States. Id. at 325. The Government sought forfeiture of the $357,144 that the defendant failed to declare. Id.
The Court observed that the forfeiture was a fine—it derived from the historical tradition of punitive, criminal forfeitures and was designed to punish the offender. Id. at 331–33. This punitive identity, the Court explained, made the forfeiture differ from traditional in rem forfeitures, which were considered nonpunitive and thus not fines. Id. But the Court noted, referencing Austin, that some modern in rem forfeitures are punitive. Id. at 331 n.6 (citing 509 U.S. at 621–22).
The Court then turned to the measure of excessiveness and determined that “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is
For the required level of proportionality, the Court supplied two main reasons for adopting gross disproportionality—instead of strict proportionality—as the appropriate measure of excessiveness: first, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature”; and second, “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise.” Id. at 336.
Applying the gross-disproportionality standard, the Court considered multiple factors. To start, the defendant’s offense was “solely a reporting offense” that was “unrelated to any other illegal activities.” Id. at 337–38. Next, the defendant did “not fit into the class of persons for whom the [criminal] statute was principally designed,” as he was not a money launderer, drug trafficker, or tax evader. Id. at 338. Furthermore, the maximum sentence the defendant could receive under the Federal Sentencing Guidelines (six months’ imprisonment and a $5,000 fine) confirmed “a minimal level of culpability,” in part because that sentence was “but a fraction” of the maximum statutory penalty (five years’ imprisonment and a $250,000 fine). Id. at 338–39, 339 n.14. And finally, the harm from the defendant’s crime was minimal. Id. at 339.
Based on these factors, the Court concluded that the forfeiture of $357,144 would be “grossly disproportional” and thus constitutionally excessive. Id. at 339–40.
Mindful of these Supreme Court decisions, we now evaluate the parties’ arguments and provide a framework for determining whether forfeiture of Timbs’s vehicle would be excessive.
B. We reject the State’s instrumentality-only test.
The State’s position—that the excessiveness of a use-based in rem fine turns solely on whether the property was used in a crime—has found practically no traction among federal circuit and state supreme courts.
Rather, courts deciding this issue have almost uniformly held that the Excessive Fines Clause includes a proportionality limitation. See, e.g., United States v. Ferro, 681 F.3d 1105, 1115 (9th Cir. 2012); von Hofe v. United States, 492 F.3d 175, 184 (2d Cir. 2007); United States v. Dodge Caravan Grand SE/Sport Van, 387 F.3d 758, 762–63 (8th Cir. 2004); United States v. 45 Claremont St., 395 F.3d 1, 6 (1st Cir. 2004) (per curiam); United States v. Wagoner Cty. Real Estate, 278 F.3d 1091, 1100 n.7, 1101 n.8 (10th Cir. 2002); United States v. 817 N.E. 29th Dr., 175 F.3d 1304, 1309–10 (11th Cir. 1999); Yskamp v. DEA, 163 F.3d 767, 773 (3d Cir. 1998); United States v. 415 E. Mitchell Ave., 149 F.3d 472, 477 (6th Cir. 1998).
And although the Fourth Circuit adopted a multi-factored “instrumentality
While courts’ excessiveness inquiries vary in structure, the vast majority focus on common considerations—like the nexus between the property and the offense, the gravity of the offense, the harshness of the penalty, and the claimant’s culpability. See, e.g., Commonwealth v. 1997 Chevrolet, 160 A.3d 153, 190–92 (Pa. 2017); Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 35–36 (Tenn. 1998).
Also finding these considerations integral to the excessiveness inquiry, we hold that the Excessive Fines Clause includes both an instrumentality limitation and a proportionality one for use-based in rem fines. Specifically, to stay within the bounds of the Excessive Fines Clause, a use-based fine must meet two requirements: (1) the property must be the actual means by which an underlying offense was committed; and (2) the harshness of the forfeiture penalty must not be grossly disproportional to the gravity of the offense and the claimant’s culpability for the property’s misuse.
For an as-applied constitutional challenge like Timbs’s, this excessiveness inquiry arises in a specific procedural context. The State must first establish that the property is forfeitable under a statute; Indiana forfeiture statutes require the State to make this showing by a preponderance of the evidence.5 See
this burden,6 then the property is forfeitable unless the
We detail in our analysis below how a court should determine whether the claimant has carried this burden. But ultimately, to establish that the statute is unconstitutional as applied under the Excessive Fines Clause, the claimant must demonstrate—for a use-based forfeiture—that the forfeiture is a fine that exceeds the Clause’s instrumentality and proportionality limitations and thus, “in justice[,] the punishment is more criminal than the crime.” 829 Calle de Madero, 100 F.3d at 738 (quoting United States v. Sarbello, 985 F.2d 716, 724 (3d Cir. 1993)). In short, the claimant must show either that the property was not an instrumentality or, if the property was an instrumentality, that the fine would be grossly disproportional.
Timbs does not argue that the State failed to carry its burden in establishing the Land Rover’s forfeitability under Section 1(a)(1)(A). He rather argues that the statute is unconstitutional as applied to the facts of this case. So, we now turn to the two parts of our excessiveness analysis.
C. Excessiveness depends on instrumentality and proportionality.
We take each excessiveness limitation in turn. We first explain why a use-based fine is excessive when the property was not an instrumentality
of the underlying offenses. We then explain why the Excessive Fines Clause includes a proportionality limitation, and we outline its contours.
1. A use-based fine is excessive if the property was not an instrumentality of the underlying crimes.
The State and Timbs agree that the Excessive Fines Clause requires the property of a use-based in rem fine to be a criminal instrumentality. We also agree. We arrive at this conclusion based on the history of in rem and in personam forfeitures.
The tradition of civil in rem forfeitures “tracks the tainted-untainted line.” Luis v. United States, 136 S. Ct. 1083, 1100 (2016) (Thomas, J., concurring in judgment). In that tradition, assets have been historically forfeitable either because they are “tainted” as fruits or instrumentalities of crime, or because they are proportional to the tainted property’s value. See Bajakajian, 524 U.S. at 329–30, 340–41; id. at 345–46, 352 (Kennedy, J., dissenting); United States v. 92 Buena Vista Ave., 507 U.S. 111, 121 & n.15 (1993) (plurality opinion). By contrast, in personam forfeitures have been historically predicated on the defendant’s conviction for a criminal offense. See Bajakajian, 524 U.S. at 332; Austin, 509 U.S. at 612–13; Ursery, 518 U.S. at 294 (Kennedy, J., concurring). Because the historical basis for an in rem forfeiture is the property’s “taint” as a fruit or instrumentality of crime, we hold that an in rem fine lacking that basis is excessive.7
those crimes render it an instrumentality? We take each question in turn, applying it to the facts of Timbs’s case.
a. The relevant crimes are those on which the State bases its forfeiture case.
Given that the foundation for an in rem forfeiture is the property’s “taint” from crime, we hold that the relevant crimes for the instrumentality inquiry are those on which the State bases its forfeiture case. Cf. United States v. 427 & 429 Hall St., 74 F.3d 1165, 1169 (11th Cir. 1996). This principle is reflected in the challenged forfeiture statute, which requires the State to establish the crimes in which the property was “used or . . . intended for use.”
As explained later, other related criminal conduct may affect the proportionality portion of the excessiveness analysis; but the instrumentality portion focuses solely on the crimes the government establishes to prove the property was used in a crime. This is roughly analogous to an in personam excessiveness analysis, in which related criminal conduct may affect the proportionality determination, but the foundation for the in personam forfeiture depends on the defendant’s conviction for certain crimes—the crimes the government charged, prosecuted, and proved.
The State and Timbs disagree about which crimes are relevant for the instrumentality inquiry. The State argues that Timbs’s repeated possession and dealing of heroin—multiple offenses listed under Section 1(a)(1)(A)—are relevant to whether the Land Rover is a criminal instrumentality. Timbs maintains that the State conceded at oral argument that the predicate offense was only the first controlled buy.
Had the State not conceded that it based its forfeiture case on only one offense, we may have had to decide whether the State based its forfeiture
case on multiple drug offenses listed under Section 1(a)(1)(A).8 But Timbs is right about the State’s concession that it based the forfeiture case solely on the dealing that occurred on May 6—the only deal he drove to. We therefore treat this single offense as the predicate crime on which the State’s forfeiture case—and thus the instrumentality inquiry—depends.
We accordingly move on to the next instrumentality inquiry: did the Land Rover’s involvement in the May 6 dealing offense
b. Property is an instrumentality if it was the actual means by which an underlying crime was committed.
The historical foundation of in rem forfeitures places a limit on what property qualifies as an “instrumentality.” See Bajakajian, 524 U.S. at 333 n.8. Specifically, property is a criminal instrumentality only if “it was the actual means by which an offense was committed.” Id. Thus, a claimant may establish excessiveness by showing that the property was not the actual means by which any of the crimes on which the government based its case were committed. Importantly, this instrumentality requirement is constitutional and independent of the statutory requirements for forfeiture.9
Supreme Court opinions offer illustrative guidance on what does—and does not—meet the actual-means requirement. For example, for an offense of removing, depositing, or concealing goods to avoid taxes, a vehicle
used to transport and conceal the goods would be an instrumentality. Id. at 334 n.9 (citing J.W. Goldsmith, Jr.–Grant Co. v. United States, 254 U.S. 505, 508 (1921)). Similarly, for an unlawful drug sale, scales used to measure out the drugs would be an instrumentality. Austin, 509 U.S. at 627–28 (Scalia, J., concurring in part and in the judgment).
In contrast, the mere presence of property in a crime does not make the property an instrumentality. See, e.g., Bajakajian, 524 U.S. at 334 n.9 (acknowledging that while certain property may satisfy a precondition to an offense’s commission, that fact alone may not make the property an instrumentality). And for property that is divisible, it may be that only part of the property was the actual means by which a crime was committed. See id. at 333 n.8; cf. Rufus Waples, A Treatise on Proceedings in Rem 252 (1882) (“If only one acre of a tract of land containing a hundred acres[] is used in contravention of law, only that acre can be rightfully condemned.”).
Timbs argues that the Land Rover was not instrumental in the May 6 dealing offense because the vehicle “had only an ‘incidental and fortuitous’ link” to the crime. Timbs Opening Br. at 17 (quoting 1997 Chevrolet, 160 A.3d at 185). He reasons that, although he drove the vehicle to the drug sale, it was just a five-minute drive from his residence. He also reasons that the vehicle is much like a building in which an isolated drug sale happens to occur—because the vehicle was no more instrumental to the drug sale than the apartment in which the sale took place. Timbs Opening Br. at 17 (citing Austin, 509 U.S. at 628 (Scalia, J., concurring in part and in the judgment)).
We disagree that the Land Rover was not the actual means by which the dealing offense was committed. It is true that the distance Timbs drove to the sale may have been short, and perhaps Timbs could have walked. But he used the vehicle not only to get himself and the drugs to the location where the deal would take place, but also to obtain the drugs for the sale.
The State argues that this is the end of the excessiveness inquiry. As mentioned earlier, we disagree and join the many courts recognizing that the Excessive Fines Clause also includes a proportionality limitation. Before elaborating on the proportionality test for use-based fines, though, we first explain why we reject the State’s argument that we should confine the excessiveness inquiry to an instrumentality test alone.
2. The Excessive Fines Clause imposes a proportionality limitation on punitive instrumentality forfeitures.
In arguing that excessiveness depends only on whether the property is a criminal instrumentality, the State relies on history: for hundreds of years, no court applied a proportionality requirement to any in rem forfeiture. So, the State concludes that “there is no historical grounding” to recognize a proportionality limitation alongside the instrumentality one. Oral Argument at 10:57–11:01, State v. Timbs (June 28, 2019), https://perma.cc/B57E-H5JC.
We agree with the State that we should “look at the historical roots of in rem forfeiture[] . . . as a guide” for determining excessiveness. Oral Argument at 11:20. But in doing so, we will not ignore how far removed today’s in rem forfeitures are from their traditional roots. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 82 (1993) (Thomas, J., concurring in part and dissenting in part) (recognizing that the modern in rem forfeiture practice under a federal drug-abuse forfeiture statute “appears to be far removed from the legal fiction upon which the civil forfeiture doctrine is based”). “[A]mbitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture.” Id. at 85.
Indeed, the way Indiana carries out civil forfeitures is both concerning, see Horner v. Curry, 125 N.E.3d 584, 612 (Ind. 2019) (Slaughter, J., concurring in the judgment), and symptomatic of a shift in in rem forfeiture law and practice. See also Leonard v. Texas, 137 S. Ct. 847, 849 (2017) (Thomas, J., respecting denial of certiorari) (observing differences between traditional and modern in rem forfeiture practices). Compare Bajakajian, 524 U.S. at 333 (observing that in rem forfeitures were traditionally considered nonpunitive), with Austin, 509 U.S. at 621–22 (acknowledging that in rem forfeiture may be—and sometimes is—punitive).
Recognizing this departure, we conclude that the Excessive Fines Clause places not only an instrumentality limit on use-based fines, but also a proportionality one. We reach this conclusion based on the text and history of the Excessive Fines Clause, the history of in rem forfeitures, and Supreme Court precedent.
a. The text and history of the Excessive Fines Clause favor proportionality.
The text and history of the Excessive Fines Clause run counter to the State’s instrumentality-only test.
The text of the Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
So does its history. The Clause’s precursor in the English Bill of Rights sought to protect against penalties that were exorbitant and out of proportion with the punished person’s wrongdoing. Id. The provision also reaffirmed Magna Carta’s guarantee that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement”—a guarantee that “required that economic sanctions ‘be proportioned to the wrong’ and ‘not be so large as to deprive [an offender] of his livelihood.’” Timbs, 139 S. Ct. at 687–88 (alterations in original) (first quoting Magna Carta, § 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225); then quoting Browning-Ferris, 492 U.S. at 271).
The Court in Bajakajian accordingly reasoned that “[t]he text and history of the Excessive Fines Clause demonstrate the centrality of proportionality to the excessiveness inquiry.” 524 U.S. at 335. Although the Court was analyzing an in personam forfeiture, the text and history of the Excessive Fines Clause apply to both in personam and punitive in rem forfeitures. See generally Timbs, 139 S. Ct. at 686–91 (observing that the right guaranteed by the Excessive Fines Clause is deeply rooted). Thus, proportionality is central to the excessiveness inquiry not only for in personam forfeitures but also for punitive in rem forfeitures. See Bajakajian, 524 U.S. at 334 (citing Austin, 509 U.S. at 622–23).
This leads us to another reason we reject the State’s instrumentality-only test: the history of in rem forfeitures does not limit the excessiveness inquiry as the State contends.
b. The history of traditional in rem forfeitures does not exclude a proportionality limit.
The history of in rem forfeitures does not justify omitting proportionality from the excessiveness analysis. The primary reason is that the “guilty property” fiction behind traditional in rem forfeitures no longer shields in rem forfeitures from review for excessiveness.
Early United States statutes authorized forfeiture of property linked to various legal transgressions. See, e.g., 1 Stat. 137, § 3 (1790) (trade with native peoples); 1 Stat. 199, § 10 (1791) (transporting distilled spirits); 1 Stat. 347, § 1 (1794) (slave trade); 1 Stat. 369, § 2 (1794) (arms exports); 1 Stat. 381, § 3 (1794) (war neutrality). Stylizing these statutory forfeitures in rem rather than in personam was sometimes necessary to enforce the law—because the person responsible for a violation was not always within the personal jurisdiction of the United States. See Austin, 509 U.S. at 615–16 n.9 (“The fictions of in rem forfeiture were developed primarily to expand the reach of the courts.” (quoting Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 87 (1992))). In those cases, bringing a forfeiture action against the property was “the only adequate means of suppressing the offence or wrong.” Harmony v. United States, 43 U.S. (2 How.) 210, 233 (1844).
Because in rem actions were brought against the property, “the conduct of the property owner was irrelevant” in the sense that—even when the responsible party was within jurisdictional reach—the
The Supreme Court often explained traditional in rem forfeitures using a “guilty property” fiction—that the inanimate property itself was guilty of the offense. Id. at 616. This fiction accurately reflected two distinctive features of in rem forfeitures: first, the actions focused on the property‘s relationship to the legal transgression (that is, the property‘s taint from a violation); and second, the forfeitures were not conditioned on the owner having been convicted for the transgression. See, e.g., Origet, 125 U.S. at 245–46; Palmyra, 25 U.S. (12 Wheat.) at 14–15; The Meteor, 17 F. Cas. 178, 181–82 (C.C.S.D.N.Y. 1866) (No. 9498).
But as venerable as the “guilty property” fiction was, it may have contributed to a false classification of all in rem forfeitures as “nonpunitive” and thus, “outside the domain of the Excessive Fines Clause.” Bajakajian, 524 U.S. at 331. While some in rem forfeitures may have been nonpunitive, many went beyond remedying the harm done, punishing owners for the lawbreaking. See, e.g.,
Thus, regardless of their classification, in rem forfeitures were ultimately understood, at least in part, as punishment. Austin, 509 U.S. at 618. And, although a blanket “nonpunitive” classification may have shielded traditional in rem forfeitures from constitutional excessiveness review—by designating all in rem forfeitures as not fines—this is no longer the case. Austin confirmed that shift.
Adding to the removal of the guilty-property fiction as a barrier to excessiveness review, expansion of in rem practices has ushered the excessiveness question into judicial view. Procedural safeguards may have tempered traditional in rem forfeitures and insulated them from constitutional challenge. See, e.g., Burdett, 34 U.S. (9 Pet.) at 690; Emily, 22 U.S. (9 Wheat.) at 389. See generally Kevin Arlyck, The Founders’ Forfeiture, 119 Colum. L. Rev. (forthcoming 2019). But in recent decades, the absence of certain shields against the oppressive use of civil forfeiture has encouraged the widened use of aggressive in rem forfeiture practices—which, in turn, has sparked criticism. See Leonard, 137 S. Ct. at 848 (Thomas, J., respecting denial of certiorari); Sargent v. State, 27 N.E.3d 729, 735 (Ind. 2015) (Massa, J., dissenting) (noting that forfeiture practices “are not without their critics, and their misuse invites further scrutiny“). See generally Timbs, 139 S. Ct. at 688–89 (observing the potential of fines to be used for retaliating against or chilling speech and for raising revenue apart from generally applicable taxes).
As a result of these changes in the law and practice surrounding in rem forfeitures,
Despite the text and history we‘ve just addressed, the State maintains that the Excessive Fines Clause either does not apply to in rem forfeitures at all or requires only that the property forfeited be a criminal instrumentality. The State acknowledges that Austin precludes the first of these positions. And we recognize that the second position creates tension with both Austin and Bajakajian—which is the final reason we reject the State‘s instrumentality-only test.
c. The State‘s instrumentality-only test would create tension with Supreme Court precedent.
Both Austin and Bajakajian recognized that some in rem forfeitures punish property owners and are thus fines within the scope of the Excessive Fines Clause. Austin, 509 U.S. at 621–22; Bajakajian, 524 U.S. at 333 n.8. Bajakajian further recognized that proportionality (which involves consideration of the claimant‘s culpability) is central to constitutionality under the Clause. Id. at 334. And the Court hinged its reasoning largely on the punitive nature of in personam forfeitures—a punitive nature that also exists in in rem fines. See id. at 330–34, 331 n.6. Accordingly, the State‘s instrumentality-only test for in rem fines would create tension with these cases by excluding the claimant‘s culpability—and other components of proportionality—from the excessiveness inquiry.
We see this tension most clearly in the case of a blameless owner. The Supreme Court has left open the question of whether the Excessive Fines Clause prohibits punitive forfeitures of property from innocent owners. Cf. Austin, 509 U.S. at 616–17, 617 n.10. So, it may be that (1) forfeiting an innocent owner‘s lawfully owned property punishes the owner; and (2) if the owner is completely blameless for the property‘s criminal “taint,” the forfeiture is necessarily excessive—because it punishes someone who has done nothing wrong. And while we don‘t need to answer the innocent-owner inquiry (because Timbs is not an innocent owner), the State‘s test would close the door to that question by dictating an answer: regardless of the owner‘s blameworthiness, the forfeiture would never be excessive so long as the property was instrumental in a crime.10
Ultimately, what flows from Austin and Bajakajian is this: the claimant‘s culpability is a consideration in analyzing the excessiveness of an in rem fine. While the basis for the forfeiture is the property‘s misuse, the punishment is imposed on the claimant, whose property becomes the government‘s and whom the Excessive Fines Clause protects.
For these reasons, we disagree with the State that excessiveness depends solely on whether the property was an