Yesterday, the Supreme Court decided to consider Timbs v. Indiana, an important constitutional property rights case. As my co-blogger Eugene Volokh and Reason's Damon Root explain, the case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as "excessive" and to what extent the Clause applies to asset forfeitures, as well as more conventional fines.

Like Eugene and Damon, I believe the case for "incorporation" of the Clause against the states is extremely strong, and should command widespread agreement on the Court. The other issues are somewhat tougher. But there is still a strong argument for using the Clause to impose significant constraints on at least a wide range of asset forfeitures.

The Bill of Rights was originally intended to restrict only the federal government. But, as leading scholars on both right and left have come to recognize, the framers of the Fourteenth Amendment sought to apply the Bill of Rights against the states, as part of their more general effort to curb state governments' abusive mistreatment of minorities and others, most notably recently freed African-American slaves. As Eugene describes in some detail, the Supreme Court initially refused to apply the Bill of Rights to the states, even after the Fourteenth Amendment. But has gradually ruled that nearly all of the individual rights listed there are in fact incorporated. Multiple lower court decisions have ruled that the Third Amendment—one of the few provisions not yet addressed by the Supreme Court—should be incorporated, as well.

Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not.

The Supreme Court's current test for determining what parts of the Bill of Rights to incorporate under the Due Process Clause of the Fourteenth Amendment was most recently restated in McDonald v. City of Chicago (2010), which incorporated the Second Amendment right to bear arms. It requires the court to consider whether the right in question is "fundamental to our scheme of ordered liberty." Protecting property rights against overreaching governments seeking to impose vastly disproportionate fines was clearly seen as a fundamental value by the Founders who drafted the Bill Rights, and by the framers and ratifiers of the Fourteenth Amendment. If you prefer a less originalist and more "living constitutionalist" approach to the test, it's worth noting the widespread opposition to asset forfeiture abuse today, which unites such disparate groups as the ACLU, the NAACP, libertarians, and many conservatives. The same result applies if you prefer the alternative approach to incorporation favored by Justice Clarence Thomas and many legal scholars: using the Privileges or Immunities Clause, rather than the Due Process Clause. As Thomas notes in his concurring opinion in McDonald, property rights are among the "privileges or immunities" of citizens that the Clause was intended to protect. Thomas is also a longtime critic of asset forfeiture abuse, and has repeteadly argued for stronger exercise of judicial review to curb it.

In sum, it would be very surprising if the Court ruled against incorporation. Indeed, I would be surprised if there were more than one or two votes against it, and a unanimous decision on that issue is entirely possible.

The more difficult questions raised by Timbs are the extent to which the Excessive Fine Clause covers asset forfeiture as well as ordinary criminal fines, and what counts as "excessive."

Asset forfeiture abuse is a serious problem that often victimizes innocent people and particularly harms the poor. For these reasons, among others, it has attracted widespread opposition on both right and left. In many states, owners have little opportunity to contest forfeiture, thereby enabling authorities to hold on to their seized property for months or even years, without so much as a hearing. In recent years, many states have enacted laws curbing asset forfeiture and a few have even abolished civil forfeiture altogether. Unfortunately, Attorney General Jeff Sessions last year reinstituted a federal policy that helps state and local law enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves. Sessions' actions drew bipartisan opposition, but reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.

Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns). Nonetheless, the Supreme Court has already ruled that at least some asset forfeitures are covered by the Clause in the 1998 case of United States v. Bajakajian. A narrow 5-4 majority consisting of the unusual coalition of Justice Thomas and four liberals struck down a criminal asset forfeiture on the grounds that the Clause covers forfeitures that are used as "punishment" for an "offense" and apply "only upon a person who has himself been convicted" of the offense in question. This reasoning seems to exclude in rem civil forfeitures, which, technically, are proceedings against the targeted property rather than the owner, and are often applied even against the possessions of owners who have not been convicted or even tried for any offense, simply on the theory that their property was used to commit a crime by someone else. In an opinion written by Justice Anthony Kennedy, the four conservative dissenters in Bajakajian argued that the majority's seeming exclusion of civil forfeitures was a mistake, and that such forfeitures should not "be left completely unchecked by the Constitution." It is not entirely clear whether Bajakajian really does exclude all civil forfeitures, or whether Thomas' opinion for the Court is best interpreted as holding that criminal forfeiture is covered, without making a definitive ruling on the civil kind.

While the defendant in Timbs was convicted of a crime, the state used civil forfeiture to seize his vehicle, rather than the criminal kind. This case, therefore, squarely presents the civil forfeiture issue. Five of the nine justices who participated in Bajakajian have since left the Court, and it is possible that a majority of today's Court might be willing to take a broader view of the Clause's coverage than the majority seemed to in the 1998 case. As a practical matter, the criminal-civil distinction is not a very compelling place to draw the line, because civil forfeitures surely are a kind of "fine" imposed to curb alleged participation in crime, notwithstanding the legal fiction that the proceeding targets property and not its owner.

The last big issue that the Court may have to address in Timbs is what counts as an "excessive" fine. In Bajakajian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." This is far from a precise standard, and it often will not be easy to tell where mere ordinary disproportion ends, and the "gross" kind begins.

Timbs itself may be an easy case when it comes to "grossness." The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000—a very large disparity. But if the Excessive Fines Clause is applied against the states, which prosecute the vast majority of criminal cases (and the lion's share of civil asset forfeitures, as well), federal courts are likely to have to deal with much closer cases in the future.

If courts decide to strike down only fines and forfeitures with very extreme disproportions between the seizure and the offense, then incorporation will only have a modest impact. In my view, that would be an unfortunate development, since the Clause forbids all "excessive" fines, not just those where the excessiveness is particularly egregious. But such a deferential posture could certainly arise, and indeed has when it comes to some other constitutional rights—including the right to bear arms—the last part of the Bill of Rights to be incorporated. The reach of the Clause would also be significantly constrained if the courts conclude it only applies to criminal forfeitures, not civil ones.

It would be unfortunate if incorporation of the Excessive Fines Clause ultimately had little impact on forfeiture.

Violations of the Excessive Fines Clause are not the constitutional flaw in current asset forfeiture practices. In my view, many forfeitures also violate the Due Process Clause of the Fourteenth Amendment, though the Supreme Court has yet to rule on that issue. It is also arguable that the civil forfeitures of innocent owners' property violate the Takings Clause of the Fifth Amendment, a position the Supreme Court rejected in 1996, but which should perhaps be reconsidered.

If, as is likely, the Supreme Court rules that the Excessive Fines Clause applies against state governments, it will not be the end of the longstanding legal battle over asset forfeitures. But it could potentially be a major step in the right direction.

NOTE: The defendant in Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have a longstanding association. Among other things, I have worked with them on a number of other property rights cases. However, I have no involvement in this case. IJ's website has a lot of interesting information on the background of the case here.

UPDATE: In the initial version of this post, I mistakenly assumed that the Timbs case involves a criminal forfeiture rather than a civil one (as is actually the case). I apologize for this mistake (which I fortunately caught within 20 minutes of posting), and have now corrected it.