Daily Press (Sunday) - - Opinion -

Tyson Timbs made a mis­take, but not one as im­por­tant as In­di­ana’s Supreme Court made in al­low­ing to stand the pun­ish­ment the state in­flicted on him. He was a drug ad­dict — first with opi­oids pre­scribed for a work-re­lated in­jury, then heroin — when his father died. He blew the $73,000 in­sur­ance pay­out on drugs and a $41,558 Land Rover, which he drove when sell­ing $225 worth of drugs — two grams of heroin — to un­der­cover po­lice of­fi­cers. Timbs’ ve­hi­cle was seized and kept, which amounted to a fine more than184 times larger than the sum in­volved in his of­fense. Come Wed­nes­day, the U.S. Supreme Court will hear ar­gu­ments con­cern­ing whether this vi­o­lated the Eighth Amend­ment, which says: “Ex­ces­sive bail shall not be re­quired, nor ex­ces­sive fines im­posed, nor cruel and un­usual pun­ish­ments in­flicted.”

The seizure was done un­der In­di­ana’s ver­sion of civil for­fei­ture laws, which al­low gov­ern­ments to seize prop­erty used in the com­mis­sion of a crime. As they are of­ten used, such laws are in­cen­tives for abu­sive gov­ern­ments, be­cause the en­tity that seizes the prop­erty fre­quently is al­lowed to profit by keep­ing or sell­ing it. Lu­cra­tive law en­force­ment will be­come law­less.

Un­der the “in­cor­po­ra­tion” doc­trine, the Supreme Court has ex­plic­itly ap­plied, through the14th Amend­ment, most of the Bill of Rights’ pro­tec­tions, piece­meal, against states’ be­hav­iors. The court’s stan­dard for do­ing so is whether a par­tic­u­lar pro­vi­sion of the Bill of Rights is “deeply rooted” in the na­tion’s his­tory and tra­di­tions, and is fun­da­men­tal to “our scheme of or­dered lib­erty.” The Cruel and Un­usual Pun­ish­ment Clause was in­cor­po­rated in1962, the Ex­ces­sive Bail Clause in1971. The pun­ish­ments pro­vi­sion pro­tects Amer­i­cans’ bod­ies, the bail pro­vi­sion pro­tects their free­dom. The fines pro­vi­sion is in­tended to pro­tect their prop­erty.

In a1989 case, Jus­tice San­dra Day O’Con­nor sen­si­bly wrote that there is “no rea­son to dis­tin­guish one Clause ... from an­other for pur­poses of in­cor­po­ra­tion.” But al­though two fed­eral ju­di­cial cir­cuits and at least14 state high courts ap­ply the Ex­ces­sive Fines Clause to the states, and al­though seven times the court (or two or more jus­tices writ­ing sep­a­rately) has said that the Eighth Amend­ment as a whole ap­plies to the states, it has never had an oc­ca­sion to ex­plic­itly ap­ply the Ex­ces­sive Fines Clause.

This al­lowed In­di­ana’s Supreme Court to be per­mis­sive re­gard­ing the state’s for­fei­ture prac­tices. The court unan­i­mously re­jected Timbs’ ar­gu­ment, that of the trial court, and of the ap­peals court. In a hear­ing on the state’s civil for­fei­ture re­quest, the trial court said that mak­ing Timbs for­feit his ve­hi­cle would be “grossly dis­pro­por­tion­ate to the grav­ity of (his) of­fense” and hence a vi­o­la­tion of the Ex­ces­sive Fines Clause. The state’s Supreme Court, how­ever, held that the U.S. Supreme Court has been in­suf­fi­ciently “de­fin­i­tive.” The In­di­ana jus­tices said that al­though “our col­leagues on the Court of Ap­peals and the trial court may be cor­rect in fore­telling where the (U.S.) Supreme Court will one day lead on whether to ap­ply the (Ex­ces­sive Fines) Clause to the states,” un­til the clause is un­am­bigu­ously ap­plied, In­di­ana fines can be grossly dis­pro­por­tion­ate with­out vi­o­lat­ing the U.S. Con­sti­tu­tion.

In de­ter­min­ing when fines are ex­ces­sive, courts must adopt some­thing akin to for­mer Jus­tice Pot­ter Ste­wart’s fa­mous ax­iom con­cern­ing pornog­ra­phy: You know ex­ces­sive­ness when you see it. Jus­tices who fancy them­selves “orig­i­nal­ists” should ac­knowl­edge that those who wrote and rat­i­fied the Bill of Rights un­der­stood that courts were go­ing to have to give con­tent to the con­cept of ex­ces­sive­ness (as well as to cru­elty and un­usu­al­ness in pun­ish­ments, and un­rea­son­able­ness re­gard­ing searches and seizures, and other open-tex­tured con­sti­tu­tional lan­guage). Do­ing so is not ju­di­cial “ac­tivism,” it is judg­ing. Fail­ing to do so is a dere­lic­tion of the duty to en­force con­sti­tu­tional guar­an­tees. Will is a Wash­ing­ton Post colum­nist. Send email to [email protected]­

Ge­orge Will

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