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Can State Governments Impose "Excessive Fines," Treat Citizens Like Walking ATMs? Indiana Says Yes

NickSibillaFeb 26, 2018, 8:27:39 PM

A case involving a Hoosier man’s confiscated Land Rover could strengthen an important constitutional safeguard against government profiteering. Under the Eighth Amendment, the government cannot impose “excessive fines” to punish criminal behavior. As the U.S. Supreme Court once noted, the Excessive Fines Clause was designed to protect against government agencies that “extract large payments or forfeiture for the purpose of raising revenue.”

Unfortunately, several courts have decided that states are not bound by that part of the Constitution. That list includes the Indiana Supreme Court, which recently ruled against Tyson Timbs, and ordered him to forfeit his $40,000 Land Rover because he sold $385 worth of drugs.

On Wednesday, the Institute for Justice, a public interest law firm, filed a cert petition urging the U.S. Supreme Court to take Timbs’ case and overturn the forfeiture. His case could have far-reaching consequences. Many state and local government agencies face systemic incentives to shake down motorists and residents to maximize revenue. Today, over 10 million Americans owe more than $50 billion in fines, fees and court costs, with billions more confiscated through state and federal forfeiture laws.

“Given the surge in punitive fines and forfeitures at the state and local levels,” the Institute for Justice noted in its cert petition, the debate over the Excessive Fines Clause “is more pressing now than ever.”

After he was injured on the job, Tyson Timbs was prescribed hydrocodone. Like far too many Americans today, he became addicted to opioids, and was soon buying pills on the black market. When his sources dried up, Timbs switched to heroin.

In the spring of 2013, Timbs was arrested after selling four grams of heroin to undercover officers. After pleading guilty, Timbs was sentenced to one year in home detention and five years on probation. He also agreed to attend a court-supervised drug treatment program and to pay over $1,200 in court costs and fees.

But the state wanted to inflict a far more severe punishment. Indiana prosecutors sought to forfeit the car he was driving: a 2012 Land Rover LR2. Following the death of his father, Timbs had spent $42,000 he received in life-insurance proceeds to buy that car. By comparison, the car was worth nearly 35 times as much as what he had paid in fees and courts costs.

“I committed a crime, then I did my time and cleaned up my life,” he said. “With forfeiture, they are trying to take away one of the few things I own—that I bought with money from my dad. Forfeiture only makes it more challenging for people in my position to clean up and become contributing members of society.”

Initially, an Indiana trial court ruled against the state. Since a felony conviction can trigger a maximum fine of $10,000 in Indiana, the court held that the attempted forfeiture would violate the Eighth Amendment’s ban on excessive fines. “While the negative impact on our society of trafficking in illegal drugs is substantial,” the court noted, “a forfeiture of approximately four times the maximum monetary fine is disproportional to Tyson’s illegal conduct.” When the state appealed the decision, the Indiana Court of Appeals also ruled in Timbs’ favor.

But in November, the Indiana Supreme Court ruled against Timbs and ordered him to forfeit his Land Rover. Writing for a unanimous court, Justice Geoffrey Slaughter took a rather unusual position: The state did not violate the Eighth Amendment’s Excessive Fines Clause because it was not bound by that part of the Bill of Rights.

Under what’s known as the incorporation doctrine, most—but not all—of the Bill of Rights has been applied to the states and localities through the Fourteenth Amendment. That includes cherished liberties like the freedom of the press, freedom of religion, the right to keep and bear arms, and the right to an attorney in criminal cases. Several rights, however, are noticeably absent including the Third Amendment’s ban on quartering soldiers, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to a jury trial for civil cases. According to Justice Slaughter, the Excessive Fines Clause has yet to be incorporated.

“The United States Supreme Court has never enforced the Excessive Fines Clause against the States,” he wrote, “and we opt not to do so here.”

But that conclusion breaks with years of precedent. As recently as its 2014 decision in Hall v. Florida, the U.S. Supreme Court held that “The Eighth Amendment provides that ‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The Fourteenth Amendment applies those restrictions to the States.” In its cert petition, the Institute for Justice observed that the High Court has “reaffirmed the same principles on a half-dozen other occasions” over the past three decades.

Notably, the Indiana Supreme Court ignored many of those decisions and instead mainly relied on a footnote to the U.S. Supreme Court’s 2010 McDonald v. Chicago decision (which centered on the Second, not the Eighth, Amendment).

Moreover, the Indiana Supreme Court’s decision “deepens a growing divide,” that has undermined the constitutional rights of millions of Americans. Indiana joins a minority of courts in Michigan, Mississippi, and Montana that have ruled that the Excessive Fines Clause has not been incorporated. In sharp contrast, the highest courts in 14 different states—Alabama, California, Delaware, Georgia, Idaho, Illinois, Kentucky, Massachusetts, Minnesota, Nevada, Ohio, Pennsylvania, Utah, and West Virginia—along with the Eighth and Ninth Circuits have all applied the Excessive Fines Clause to the states.

“To be a meaningful right of American citizenship,” the Institute for Justice remarked in its petition, “a right must have equal force throughout the nation:”

“Today, the Eighth Amendment’s protection against excessive fines applies in some places, but not others. The Clause protects people in Idaho, but not Montana; it protects people in Alabama, but not Mississippi; and—with the Indiana Supreme Court’s decision in this case—it protects people in Illinois, but not Indiana.”

Amid this deepening split, municipalities across the nation have generated a surge in revenue from fines and fees. Most infamously, police in Ferguson, Missouri issued thousands of traffic tickets and citations for petty code violations, in order to maximize revenue. According to a blistering investigation by the Justice Department, arrest warrants were “primarily issued to coerce payment” in Ferguson, with more than 9,000 warrants issued in 2013 alone. A single missed payment could lead to a suspended driver's license or even jail time. “This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing,” investigators concluded.

Not far from Ferguson, residents in Pagedale, Missouri, can be fined for uncut grass, mismatched drapes, saggy pants or having a satellite dish on a house’s front side. Between 2010 and 2014, the number of non-traffic tickets issued in Pagedale skyrocketed by 495 percent. No surprise then that court fines and fees comprised the town’s second largest revenue stream. On behalf of residents, the Institute for Justice has filed a civil rights class-action lawsuit against the town.

Although Ferguson and Pagedale are extreme cases, many of their practices are sadly quite common. So in March 2016, the Justice Department sent out a “Dear Colleague” letter that urged courts nationwide to comply with basic constitutional principles.

For instance, the government should not throw defendants in jail simply because they are too poor to pay a fine or fee. Nor should courts authorize arrest warrants or suspend driver’s licenses to force defendants to pay up, unless there is a genuine public safety risk. Additionally, the letter warned that when prosecutors, judges, or other government-appointed actors have “a direct pecuniary interest in the management or outcome of a case,” that could violate a defendant’s right to due process and an impartial court. Allowing law enforcement to keep revenue from court cases creates a powerful incentive to police for profit, which distorts priorities away from public safety and towards self-enrichment.

But in December, Attorney General Jeff Sessions rescinded the letter. In a press release, the Attorney General said the letter, along with two dozen other guidance documents, were “improper or unnecessary.”

By rescinding that letter, the Attorney General is turning a blind eye to widespread abuses and profiteering in America’s criminal-justice system. With the executive branch pulling away from even a minimal amount of oversight, it is more important than ever that the judicial system protects constitutional rights and liberties from profit-driven government agencies. The debate over the Excessive Fines Clause has taken on a new urgency.

“Increasingly, our justice system has come to rely on fines, fees, and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets,” said Institute for Justice Senior Attorney Darpana Sheth. “This is not just an ominous trend; it is a dangerous one. We hope the Supreme Court takes this issue on, so we can establish that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.”

Originally posted at Forbes.com .