Supreme Court justices pose for their group portrait at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

It’s always a good day when even Justice Ruth Bader Ginsburg writes like an originalist — and that’s exactly what she did when she wrote the opinion for seven justices in Timbs v. Indiana (justices Gorsuch and Thomas filed separate concurring opinions). At issue was the important question of whether the Eighth Amendment’s excessive fines clause applied to the states and whether the excessive fines clause applied to a practice called in rem civil-asset forfeiture. Under this practice, law-enforcement officials often engage in two separate punitive legal processes against criminal defendants. The first is the criminal prosecution itself, which can impose prison sentences and fines according to statutorily defined punishments. The second is often a civil action against the criminal defendant’s property. Yes, the government will file suit against trucks, cars, jewelry, boats, and cash — leading to absurd case captions like, say, Texas v. One Gold Crucifix — claiming that the property was used for criminal purposes and then seize that property under a lower, civil, burden of proof.

As a result, a defendant can often lose their property without ever being convicted of a crime. Even if convicted of a crime, they can face asset forfeiture that far, far exceeds the amount of any criminal financial penalty under applicable. Then, often, law enforcement turns around and sells the property or pockets the cash — using it to pad state and local law-enforcement budgets. The practice is so common that in 2014, for example, the state took more money from citizens than burglars took from crime victims.

Thanks to the Supreme Court, civil-asset forfeiture now faces a new and substantial constitutional obstacle. I particularly liked how Justice Ginsburg traced objections to the excessive fines all the way back to the Magna Carta:

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed 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 . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.”

There’s some real wisdom in Anglo-American legal history. Over at Reason, Ilya Somin has a nice analysis of the case, and he adds an important caveat:

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as an “excessive” in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal. But, hopefully, that will not prove to be the case.

I also agree with Ilya regarding the application of the excessive-fines clause to the actual facts of the Timbs case itself. Indiana seized a $42,000 Land Rover when the maximum criminal fine for the offense was $10,000. In other words, through civil-asset forfeiture, the state could impose four times the monetary penalty while adjudicating the case under a lower burden of proof.

It is entirely just to impose proportionate criminal penalties for criminal acts. It is fundamentally unjust to supplement those criminal penalties with exorbitant additional civil forfeitures. That injustice is magnified when police departments have direct financial incentives to collect as much property as they can. Today, the Supreme Court began the process of rolling back a serious constitutional abuse. Good for the Court, and congratulations to the excellent attorneys at the Institute for Justice who litigated the case.

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