In the

Supreme Court of the United States

TYSON TIMBS AND A 2012 LAND ROVER LR2, Petitioner,

v.

STATE OF INDIANA, Respondent.

 

BRIEF OF PETITIONER

QUESTION PRESENTED

Whether the Eighth Amendment's Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Section 1 of the Fourteenth Amendment provides, in relevant part: "No State shall make or enforce any law which shall abridge the privileges or United States; nor immunities of citizens of the shall any State de­prive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

FACTS OF THE CASE

Tyson Timbs purchased a Land Rover for approximately $42,000 in January 2013 using the proceeds from his father’s life insurance policy. During the following four months, Timbs used the vehicle for multiple trips within Indiana to transport heroin. After a series of controlled purchases involving a confidential informant, Timbs was arrested at a traffic stop. At the time of his arrest in May, the Land Rover had approximately 15,000 more miles on it than when he purchased it in January.

The state charged Timbs with two charges of felony dealing and one charge of conspiracy to commit theft. He later pleaded guilty to one charge of felony dealing and one charge of conspiracy to commit theft in exchange for the state dismissing the remaining charge. After accepting the plea, the trial court sentenced Timbs to six years, five of which were to be suspended. Timbs also agreed to pay fees and costs totaling approximately $1200.

In addition, the state sought to forfeit Timbs’ Land Rover. The trial court denied the state’s action, ruling that the forfeiture would be an excessive fine under the Eighth Amendment, characterizing it as grossly disproportional to the seriousness of the offense. The court also noted that the maximum statutory fine for Timbs’ felony dealing charge was $10,000, and the vehicle was worth roughly four times that amount when Timbs purchased it. The trial court ordered the state to release the vehicle immediately. The court of appeals affirmed.

The Indiana Supreme Court reversed, concluding that the U.S. Supreme Court had never clearly incorporated the Eighth Amendment against the states under the Fourteenth Amendment. The court also ruled that the state had proven its entitlement to forfeit the Land Rover under state law.

INTRODUCTION

Five Terms ago, this Court observed correctly­ that the Excessive Fines Clause applies to the States:

"The Eighth Amendment provides that 'excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,''' and "the Fourteenth Amendment applies those restrictions to the States."

 The Court made a similar observation in 2001 that "the Fourteenth Amendment makes the Eighth Amendment's prohibition against excessive fines and cruel and unusual punishments applicable to the States." And on several other occasions over the last 30 years, the Court has made statements to the same effect.

Perhaps because those cases did not involve fines, the Indiana Supreme Court "declined" to treat the Excessive Fines Clause as incorporated against the States. But the Clause easily meets the standard for incorporation. Freedom from excessive fines is both "fundamental to our scheme of ordered lib­erty" and "deeply rooted in this Nation's history and tradition."

Whether the question presented is viewed through the Due Process Clause or the Privileges or Immuni­ties Clause, the right to be free from excessive fines is fundamental and applies to the States. The power to fine is-and has always been-a formidable one. And unlike every other form of punishment, fines and for­feitures are a source of revenue for the government, making them uniquely prone to abuse. The accompa­nying risk to life, liberty, and property is very real. "In a free government," after all, "almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private for­tune of every citizen."). The Court should thus hold that the Excessive Fines Clause applies to the States under the Fourteenth Amendment.

SUMMARY OF ARGUMENT

Whether viewed through the Fourteenth Amend­ment's Due Process Clause or its Privileges or Immun­ities Clause, the Excessive Fines Clause applies to the States.

First, the Due Process Clause incorporates the right to be free from excessive fines because it is among those rights that are "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's his­tory and tradition." McDonald v. City of Chicago, (2010). When the Eighth Amendment was ratified, in 1791, protections against excessive fines were already fundamental and deeply rooted in the Anglo-American legal tradition. When the Fourteenth Amendment was ratified, in 1868, the right continued to rank among Americans' most basic liberties. That remains equally true today.

Applying the Excessive Fines Clause to the States is also consistent with this Court's Eighth Amendment precedent. Like the protections against "cruel and un­usual punishments" and "excessive bail"-which have long been understood to apply to the States-the Ex­cessive Fines Clause "prevents the government from abusing its power to punish." Austin v. United States, (1993). Put dif­ferently, the Amendment's three Clauses embody "par­allel limitations" on the government's punitive power. There is thus "no reason to distinguish one Clause of the Eighth Amendment from another for purposes of incorporation." Like the Eighth Amendment's two other Clauses, the Excessive Fines Clause applies to the federal government and the States alike.

Second, the Privileges or Immunities Clause pro­vides an alternative path for holding that the Exces­sive Fines Clause applies to the States. Like other rights secured in the first eight Amendments, the right to be free from excessive fines is one of the "privileges or immunities of citizens of the United States," which no State may abridge. For this reason, too, the Exces­sive Fines Clause is applicable to the States.

 

ARGUMENT

I.       The Excessive Fines Clause applies to the States under the Fourteenth Amendment's Due Process Clause.

The Excessive Fines Clause applies to the States because it is "incorporated in the concept of due pro­cess." This Court long ago "shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. And under the "well established" standard set forth in McDonald, the Exces­sive Fines Clause merits incorporation. The right to be free from excessive fines was deeply rooted at the time of the framing. It was deeply rooted at the time of the Fourteenth Amendment's ratification. It remains deeply rooted today. The only approach consistent with this Court's Eighth Amendment precedent is to apply the Excessive Fines Clause to the States.

(BEN'S COMMENT: – A LONG BUT INTERESTING HISTORY LESSON)

A.     When the Eighth Amendment was rati­fied, the right to be free from excessive fines was already deeply rooted in the Anglo-American legal tradition.

The right to be free from excessive fines is funda­mental and "deeply rooted in this Nation's history and tradition." The Amendment's language was lifted almost ver­batim from the Virginia Declaration of Rights, which borrowed in turn from the 1689 English Bill of Rights, which declared: "excessive Bail ought not to be re­quired, nor excessive Fines imposed; nor cruel and un­usual Punishments inflicted." Blackstone traced the protection against excessive fines back further still, to Magna Carta, and before that to the reign of Henry II. Throughout these periods, the right to be free from excessive fines has been closely linked to securing life, liberty, and property.

1. Concerns about the abuse of the sovereign power to fine date back at least to Norman times. "So intimate is the connexion of judicature with finance under the Norman kings," wrote one nineteenth-cen­tury scholar, "that it was mainly for the sake of the profits that justice was administered at all." Magna Carta imposed an early check on the king's power to fine, providing 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." Sixty years later, Parliament prohib­ited excessive fines by statute, providing that no man might "be amerced, without reasonable cause, and ac­cording to the quantity of his Trespass."

2. Four centuries later, in the 1600s, abuses by the Stuart kings led Parliament to enact even more concrete protections against excessive fines.

a. During Charles I's reign, fines served to raise revenue, target dissenters, and disrupt the balance of power between Parliament and the crown. Ordinarily, Parliament's power over the purse meant the monarch had to call Parliamentary sessions with some regular­ity. With minor exceptions, Parliament alone had the power to tax. Charles, however, dissolved Parliament for over a decade, resorting instead to abusive fines to keep his treasury afloat. Because "new resources of revenue ... had now to be discovered," offenses "were sedulously sought for among the clauses of obsolete statutes, to discover pretexts under which money might be extorted."

For example, the king resurrected a "fine imposed upon all owning land worth forty pounds a year, who had neglected to be knighted." In this way, he "mulcted ... the less wealthy classes of the com­munity," and "very many were put to grievous fines and other vexations." "An­other mode of extracting money was to grant licenses to build houses, and then pretend that the houses were built contrary to proclamation, and extort heavy fines."

b. Abusive economic sanctions became a politi­cal flashpoint again during the reigns of Charles's sons-Charles II and James II. "Towards the end of Charles II's reign, the courts imposed ruinous fines on the critics of the crown." These practices caused renewed tensions with Parliament. In 1681, the House of Commons tried (unsuccessfully) to impeach the Lord Chief Justice of the King's Bench based in part on his "notorious departure from all Rules of Justice and Equality, in the Imposition of Fines upon Persons convicted of Misdemeanors."

Matters deteriorated further in the years leading up to the Glorious Revolution. "In the 1680's the use of fines 'became even more excessive and partisan,' and some opponents of the King were forced to remain in prison because they could not pay the huge monetary penalties that had been assessed." The sheriff of London "was fined £100,000 in 1682 for words spoken against the duke of York.". "In 1684 Sir Samuel Barnardiston was fined £10,000 for writing letters alleged to be seditious; the sum was so huge that he languished in prison and his estate was ruined." In one case the judge ruled that Magna Carta's limitations on "amercements" did not apply at all "to fines for offenses against the king."

Against this backdrop, Parliament paid careful attention to the sovereign's power to punish after James II abdicated in 1688. The English Bill of Rights devoted two paragraphs to abusive fines to “ensure that England's Lawes and Liberties might not againe be in danger of being Subverted, and so provided that excessive Baile ought not to be required nor excessive Fines im­posed nor cruell and unusuall Punishments inflicted." Freedom from excessive fines, the Bill of Rights con­firmed, was one of the "ancient Rights and Liberties" of English subjects.

3. Across the Atlantic, this history helped shape the American colonists' view of their fundamental rights. The right to be free from excessive fines remained fundamental to the citizens of the new United States. In 1776, the Virginia Convention adopted a Declaration of Rights, which drew verbatim from the English Bill of Rights: "Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The same mistrust of the power to punish inspired ratification of the Eighth Amendment in 1791. The Amendment's "primary focus ... was the potential for governmental abuse of its 'prosecutorial' power," with the Ex­cessive Fines Clause in particular "limiting the ability of the sovereign to use its prosecutorial power, includ­ing the power to collect fines, for improper ends. Even opponents of the Bill of Rights viewed the right to be free from excessive fines as fundamental to the new Nation's legal system. Edmond Randolph, for instance, thought the right so fundamental that it would be foolish to enumerate it: "As to the exclusion of excessive bail and fines, and cruel and unusual pun­ishments," he argued, "this would follow of itself, with­out a bill of rights." When the Fourteenth Amendment was ratified, the right to be free from exces­sive fines remained fundamental to our Nation's legal system.

Americans continued to cherish their freedom from excessive fines 75 years later, when the Four­teenth Amendment was ratified. As Congress debated the language of the proposed Amendment, in 1866, members regarded the right as essential to our system of ordered liberty. And when the States ratified the Amendment, in 1868, each of their state constitutions included an enumerated protection against excessive fines. As the history of this period confirms, the Exces­sive Fines Clause was among the provisions of the Bill of Rights that the Fourteenth Amendment incorpo­rated against the States.

The years following the Civil War illustrate how economic sanctions threatened to undermine the rights of the Nation's most oppressed citizens. Across the South in 1865-66, lawmakers adopted "Black Codes," which violated the fundamental liberties of newly freed slaves and their supporters. Economic sanctions were a common feature of the Black Codes, with southern States using fines and forfeitures to subjugate African Americans and protect the status quo.

2. State-level protections drive home the point.

At the same time that some southern States were violating their residents' fundamental rights, all States ranked the right to be free from excessive fines as fundamental. When the Fourteenth Amendment was ratified, in 1868, 35 of the 37 States (representing 92 percent of the American population at the time) included provisions in their state constitu­tions mirroring the language of the Excessive Fines Clause. The two remaining States included proportionality clauses, enshrining the same basic right. As a result, every State that ratified the Fourteenth Amendment ranked pro­tection from excessive fines as essential to our Nation's legal system.

The history surrounding the Eighth and Four­teenth Amendments thus confirms that the right to be free from excessive fines is "among those fundamental rights necessary to our system of ordered liberty."

The right to be free from excessive fines remains fundamental today.

The power to fine people and confiscate their property is the power to limit their freedom. Although modern fines seldom trigger "imprisonment for life," they can "amount to perpetual punishment" in other ways. Losing a car or a home to forfeiture can be "financially devastating." The same is true of criminal debt. Defaulters may see their driver's licenses suspended or their voting rights withheld-of­ten with no regard for their ability to pay. Even low-level offenders are subject to court monitoring until their fines are paid in full, which for some people can mean the rest of their lives

As the Framers of the Eighth and Fourteenth Amend­ments understood, the government's power to fine can have grave consequences for personal liberty. The sovereign power to fine also remains uniquely prone to abuse. Unlike every other form of punishment (all of which cost the government money), "fines are a source of revenue." So "there is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribu­tion and deterrence." Because "the State stands to benefit," there is a pronounced risk that govern­ments-federal, state, and local alike-will exercise their prosecutorial powers not to do justice, but to raise revenue.

In the twenty-first century, punitive economic sanctions continue to be used "for raising revenue in unfair ways." Particularly at the state and local levels, "many law­makers use economic sanctions in order to avoid in­creasing taxes while maintaining governmental services." Some lawmakers even include in­creases in ticketing in projected budgets."

In Pagedale, Missouri, city officials adopted an aggressive code-enforcement strategy after state lawmakers capped the amount of revenue that cities could collect from traffic tickets. Pagedale residents found themselves fined relentlessly for trivial violations like wearing sagging pants or hav­ing toys in front yards. Even enjoying a beer within 150 feet of a grill could lead to a fine. The number of non-traffic tickets in the city spiked 495 percent over a five-year period. In 2014, the city issued nearly enough non-traffic tickets for every household in Pagedale to receive two.

Civil forfeiture is exploited in similar ways. At the fed­eral level, and in many States, when property is for­feited most (and often all) of the resulting proceeds go directly to law enforcement, frequently into the coffers of the seizing agency itself. As a result, state and fed­eral law-enforcement agencies increasingly use civil forfeiture as a revenue-raising tool. In 2012, agencies in 26 States and the District of Columbia took in more than $254 million through forfeiture under state laws alone.

Indiana-where this case arises-highlights some of the most dangerous practices in the Nation to­day. Unlike in every other State, Indiana statutes al­low prosecutors to outsource civil-forfeiture cases to private lawyers on a contingency-fee basis. This case, for example, was prosecuted by a private law firm. "The biggest scandal of all is Indiana's institutionalized bounty hunter system in which state prosecutors con­tract with private attorneys to handle all of the county's civil forfeiture cases for a contingent fee of a quarter or a third of all the property they forfeit.").

Law-enforcement officials in Indiana do not hide the fact that they view economic sanctions as an im­portant source of revenue. For example, Indianapolis police set annual targets for their state and federal for­feiture funds. And last year, another county's prosecutor told the General Assembly that he would abandon forfeiture al­together if his office were to lose its stake in forfeiture revenue: "I'm not going to hire anybody to do forfei­tures to collect money for the State of Indiana. If my office isn't getting money, I'm not going to be able to pay them for that, and-why am I going to do the extra work and not have some benefit that comes out of it?"

(BEN'S COMMENT- THE REST OF THIS ARGUMENT CONTINUES ON AND ON IN THE SAME VEIN)

In summary, incorporation of the Excessive Fines Clause is warranted under the Due Process Clause or the Privileges or Immunities Clause. Under either pro­vision (or both), the Excessive Fines Clause applies to the States.

CONCLUSION

This Court should reverse the judgment of the Indiana Supreme Court and remand for further pro­ceedings.