Lucrative law enforcement will become lawless

November 26, 2018

WASHINGTON — 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 than 184 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 the 14th 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 in 1962, the Excessive Bail Clause in 1971. The punishments provision protects Americans’ bodies; the bail provision protects their freedom. The fines provision is intended to protect their property.

In a 1989 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 least 14 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.

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