To qualify as a “privilege” or “immunity” of U.S. citizenship, the right must be both fundamental to citizenship and have a long history.
Asset Forfeiture, Incorporation, and the Fourteenth Amendment
The years-long campaign in which many conservatives have joined liberals in opposition to forfeitures as criminal and civil penalties culminated two days ago in oral arguments in the Supreme Court in the case of Timbs v. Indiana. In that case, the plaintiff and supporting amici groups propose an increase in the jurisdiction of the federal courts and an extension of the modern constitutional trend of the Court “incorporating” the clauses of the Bill of Rights, in this case, the Excessive Fines Clause of the Eighth Amendment, against the states
The Bill of Rights in the Fourteenth Amendment
In Federalist 45, written before the Bill of Rights was ratified, of course, Madison gave a working definition of the federalist system of government when he asserted that the powers of the proposed federal government were “few and definite,” while the powers of the states were “numerous and indefinite.” The reserved powers of the states concerned “the lives, liberties, and properties of the people,” he said, and the “internal order, improvement, and prosperity of the State.”
In Barron v. Baltimore (1833), a case involving the Takings Clause of the Fifth Amendment, the Court held that the first sentence of the First Amendment of the Bill of Rights “Congress shall make no law . . .” applied not only to the five rights stated in the First Amendment but to the whole Bill of Rights. Writing for the unanimous Court, Chief Justice John Marshall concluded that the Bill of Rights did not apply to the states. Marshall said that the Bill of Rights “contain no expression indicating an intention to apply them to the State governments.” Even after the 1868 ratification of the Fourteenth Amendment, the Court continued to uphold the Barron ruling, for instance, in United States v. Cruikshank (1876), a First and Second Amendment case. Of the Second Amendment, the Cruikshank Court said that “it means no more than that it shall not be infringed by Congress.”
In Gitlow v. New York (1925), the Court reversed the 92-year history of Barron constitutionalism and concluded that the First Amendment had been incorporated into the Due Process Clause of the Fourteenth Amendment. The Court so held despite having ruled three years earlier in Prudential v. Cheek that the Fourteenth Amendment has not incorporated a freedom-of-contract right against the states.
The Gitlow Court devoted almost all of its attention to the freedom-of-speech facts and aspects of the case. Barron v. Baltimore was never cited, and the revolutionary change in constitutional law and federalism was barely mentioned. Indeed, the Court said only that “we may and do assume that freedom of speech and of the press . . . are protected by the due process clause of the Fourteenth Amendment.” (emphasis added). That was the extent of constitutional consideration.
After the Gitlow incorporation of the First Amendment’s Free Speech Clause, the Court over the next 27 years incorporated the First Amendment’s religion clauses and its freedom of the press and assembly clauses. And per the Warren Court, which revolutionized criminal procedure in the states, the following Fourth, Fifth, and Sixth Amendment rights of the accused were incorporated against the state: double jeopardy, self-incrimination, search and seizure, warrants, felony jury trial, and the right to assistance of counsel funded by the public, as well as the excessive bail and cruel-and-unusual punishments provisions of the Eighth Amendment. Today, in addition to the Excessive Fines Clause, the provisions of the Bill of Rights that have not been incorporated against the states are the Fifth Amendment’s Grand Jury Clause and the Seventh Amendment’s civil-jury right.
And most recently, the Second Amendment’s right to keep and bear arms was incorporated into the Fourteenth Amendment in an opinion written by Justice Alito (joined by Roberts, Scalia, Thomas, and Kennedy) in McDonald v. Chicago (2010). In that case, Alito enunciated the now-standard, albeit vague, principle of how the Court should decide whether one of the rights of the Bill of Rights is incorporated into the Fourteenth Amendment: whether the right is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”
The extent of the incorporated authority of today’s Supreme Court’s to resolve the most high-profile and sensitive issues concerning “the lives, liberties, and properties of the people” was illustrated this year by its First Amendment decisions handed down in the Masterpiece Cake and abortion-speech Becerra cases. In both of those cases, the Court upheld individual plaintiff’s suits against the states of Colorado and California, respectively. In all of American history before the 1940’s, those cases could not have been adjudicated by the Supreme Court.
Incorporation, forfeitures, and fines
So, in Timbs v. Indiana, the justices considered whether to incorporate the Excessive Fines Clause, the third and remaining unincorporated clause of the Eighth Amendment. Tyson Timbs pleaded guilty to an Indiana state prosecution for distributing heroin and received the very mild sentence of one-year house arrest, five years of probation, and fines and court costs totaling $1,200. As part of his plea deal with the prosecution, other heroin-dealing charges against Timbs were dismissed. After his sentencing, the state of Indiana brought a civil forfeiture action against his Land Rover on the basis that Timbs had used the vehicle in his drug dealing. Timbs sued the state of Indiana and argued that the forfeiture of his Land Rover was disproportionate to the gravity of his offense; it was, Timbs argued, an “excessive fine.”
Like the Excessive Fines Clause in the federal Eighth Amendment, all state constitutions, including Indiana’s, provide for a prohibition of excessive fines in criminal cases The forfeiture of property appears in the Constitution. Under Article III, Section 3, the Congress has the power to fix sentences, including forfeiture, but Section 3 prohibits a criminal sentence for treason that includes forfeiture and that extends beyond the life of the treasoner. The penalty of forfeiture has ancient beginnings, both in the English common law and in other countries. As the Supreme Court said in the civil forfeiture case of Austin v. United States (1993), the tradition of forfeitures under the English common law “were established in England at the time the Eighth Amendment was ratified in the United States.” The Court had also reviewed the ancient origins of civil forfeiture in Calero-Toledo (1974). Civil (in rem) forfeiture, that is, a civil action against property, was commonly used in English admiralty, customs, and navigation laws, and that practice was immediately absorbed into similar laws passed by the First Congress.
The use of forfeiture in federal law was greatly expanded when the “war on drugs” was launched in the 1980’s. However, forfeiture is widely used today in federal white-collar and fraud cases as the most effective means of recovering the proceeds and profits of crime. Today, federal law allows for the forfeiture of any property which has been used in, derived from, or is the proceeds of criminal offenses. The forfeiture action can proceed as part of the sentence in a criminal case or against the target property itself in a civil forfeiture case without a criminal charge against a person.
In Austin v. United States (1993), the federal government brought a civil forfeiture action under federal law for the forfeiture of some buildings and land that had been the site of drug deals. The Supreme Court ruled that the current federal civil forfeiture statutes made forfeitures out to be “monetary punishments,” and that the English/American legal and judicial tradition endorsed that conclusion. Therefore, the case and those statutes were subject to the Eighth Amendment’s Excessive Fines Clause. In Timbs, the plaintiff used Austin to argue that if forfeitures as monetary punishments were “deeply rooted” in federal law, they are just as deeply rooted in state law, and the Austin result should be incorporated against the states. The state of Indiana argued that Austin is limited to federal law.
The Briefs of Parties and Amici
In his brief filed in the Court, Plaintiff Timbs argued, first, that because a prohibition of excessive fines goes back to the 1789 ratification of the Bill of Rights and farther back to the English Bill of Rights of 1689, that it is a “right deeply rooted in the Nation’s history and traditions” and is incorporated against the states by the Due Process Clause of the Fourteenth Amendment. Second, since the Court has already incorporated the excessive bail and cruel-and-unusual punishment provisions of the Eighth Amendment, there was no reason, Timbs maintained, why it should not add the remaining provision, excessive fines, to the incorporation list. Last, Timbs argued that the Excessive Fines Clause could be incorporated via the Privileges or Immunities Clause of the Fourteenth Amendment.
The several amici briefs in favor of incorporation argued that contemporary forfeitures have become disproportionate to the underlying crimes, that forfeiture invades property rights, and that governments are using the proceeds of forfeiture as a means of funding their police operations. The U.S. Chamber of Commerce went so far as to argue in its amici brief that forfeiture and excessive fines are undermining economic growth. The libertarian Institute for Justice brought the case on behalf of Timbs. And the group of amici briefs clearly demonstrated a coalition of conservative and liberal activist litigating groups on the subject of forfeiture, with Pacific Legal Foundation, Judicial Watch, and Rutherford Institute joining with the ACLU in support of incorporation. Also noteworthy was the Cato Institute filing a joint brief with the Southern Poverty Law Center.
In its brief, Indiana defended itself with four arguments. First, it distinguished criminal from civil forfeiture and argued that proportionality—that is, the punishment should fit the crime—is a standard only for criminal forfeitures because they are punishments of persons. Thus, civil forfeiture by definition cannot be “excessive.” Second, it argued that the incorporation doctrine, as recently enunciated in the Second Amendment case, McDonald, did not make forfeiture a deeply rooted American tradition that should be enforced against the states. Third, Indiana argued that forfeiture is not a “fine,” and, therefore, is not subject to the Excessive Fines Clause. Fourth, it argued that the Austin civil forfeiture case should be overruled but, if not, it should be a precedent only for federal civil forfeitures, and, thus, is not a basis for incorporating state forfeiture proceedings.
At oral argument yesterday, the Institute for Justice’s Wesley Hottot, appearing for Timbs, argued that the Excessive Fines Clause should join the two other clauses, excessive bail and cruel-and-unusual punishment, of the Eighth Amendment, as incorporated under the either Due Process Clause or the Privileges or Immunities of the Fourteenth Amendment. He asserted that forfeitures are fines and are punitive and that forfeiture is a punishment of a person, regardless of the kind of suit, criminal or civil, which should be subject to an excessiveness analysis. When Chief Justice Roberts attempted to make a distinction between a criminal fine directed at a person and a civil forfeiture directed at a piece of property, Hottot answered that the issue is no longer about “pirate ships” but about “every person’s property” that the police have “the power to strip people of.”
What ensued was a back and forth with Roberts and Justices Alito comparing excessive criminal fines to excessive prison sentences. Hottot stated that he was not trying to “articulate a new standard of excessiveness” but that forfeitures should be incorporated against the states in order “to guarantee all Americans a right to a defense under the excessive fines clause.” But he did argue, in exchanges with Justices Breyer and Alito, that the forfeiture of the expensive Land Rover was disproportionate to the amount of heroin, two grams, for the single heroin sale that he pleaded guilty to. In the end, he said that he was “merely” asking the Court to give all Americans “the right to raise the excessive fines defense” based on the federal Eighth Amendment which would be resolved individually in individual cases. There would be no formula. That caused Roberts to respond, “you say don’t worry what it means, just incorporate it and then figure it out later.”
When it came his turn, Thomas M. Fisher, Solicitor General of the state of Indiana, ran into a buzzsaw. Only Justice Thomas, whose habit it is not to speak at oral argument, spared him. Justice Gorsuch immediately attacked and demanded that Fisher simply admit that the Excessive Fines Clause is incorporated against the states. Gorsuch said that he would consider whether an in rem forfeiture is a fine under that Clause, but first he demanded Fisher’s concession. “Let’s say that this Court’s not inclined to revisit Austin,” he proposed. Justice Kagan asked why Indiana wanted to “divide up rights,” defining the prohibition of excessive fines differently for the states and for the federal government. Fisher replied that civil forfeitures were historically distinct and that the best solution was to overrule Austin.
To Fisher’s attempt to make a distinction between criminal and civil forfeiture and argue that civil forfeitures are not punitive of the person, Gorsuch countered that modern civil forfeitures are indeed punitive even though “that was not part of in rem forfeitures at common law.” Chief Justice Roberts stated that the Court could possibly incorporate the Excessive Fines Clause and then in a later case decide whether a certain judgment of civil forfeiture was excessive. Justice Kagan agreed with Roberts and said that the Court should “flip the switch of incorporation” and leave questions about the excessiveness and proportionality of forfeitures “for another day.” She called that the “pretty standard practice” of the Court.
Overall, it seems that with the hostility bordering on sarcasm that Indiana’s counsel experienced and after the Austin case making federal forfeitures subject to the Excessive Fines Clause and the McDonald case incorporating the Second Amendment, the Court is now going to incorporate the Excessive Fines Clause into the Fourteenth Amendment. The Court is probably merely going to declare the incorporation of the Excessive Fines Clause, leaving it to later to hear cases about what specifically ordered forfeitures were “excessive.”
That prospective and new area of law is going to be freewheeling and subjective for trial courts, for, unlike criminal statutes that clearly identify the possible sentences and range of sentences, there is no statutory definition about a range of appropriate and “proportional” forfeitures. The probable result is that trial courts are going to minimize forfeitures.
The Timbs case also illustrates how effective public campaigns about issues can be and how those campaigns can turn policy issues into constitutional issues. Presumably referring to some kind of public consensus, Timbs’ counsel made several abstract and gratuitous remarks about forfeiture today. He said that “every officer on the street now has the power to strip people of their property,” and ignoring Indiana’s excessive fines clause in its state constitution and as well as in probably every state’s constitution, Hottot said that “the citizens of Indiana today don’t enjoy protection from excessive fines of any kind” and what was needed was a “guarantee to all 330 million Americans a right to a defense under the Excessive Fines Clause.” And in scolding Indiana’s counsel, Justice Gorsuch said that with respect to forfeiture, “we’re dealing with a world that is difference in kind” from the past. Likewise, Justice Sotomayor made a general reference to “these forfeitures that are occurring today,” many of which “seem grossly disproportionate to the crimes being charged.”
There is nothing in the record that indicates that plaintiff Timbs pursued a remedy against this state forfeiture action under Section 16 of Indiana’s state Bill of Rights which not only prohibits “excessive fines” but also holds that “All penalties shall be proportioned to the nature of the offense.” There is no such clause about proportionality in the federal Bill of Rights. In other words, there was a much better basis for an Indiana constitutional case than a federal one. And as discussed above, “proportionality” was a major issue in both the briefs and the oral arguments in Timbs.
Why not federalism? Civil forfeiture has become a major issue not only at the federal level but also in several states. And North Carolina, New Mexico, and Nebraska have abolished it altogether. The answer is that nothing surpasses the intellectual intoxication and will to power of a federal constitutional lawsuit—democracy be damned.