For the Defense - Vol. 4, Issue 2 - 6

Timbs v. Indiana:

A Modest Victory and
a Missed Opportunity
David B. Smith and Jed M. Silversmith

O

n February 20, the U.S. Supreme Court
handed down its decision on the Eighth
Amendment's excessive fines clause. In
Timbs v. Indiana, 2019 DJDAR 1337, Justice Ruth
Bader Ginsburg authored a unanimous decision
holding that the excessive fines clause is an
incorporated protection applicable to the states
under the Fourteenth Amendment's due process
clause. A few state supreme courts, most recently
Indiana's, remarkably had concluded that the
clause did not apply to state forfeiture actions
because the U.S. Supreme Court had not yet
squarely held that it did apply. The U.S. Supreme
Court easily cleared that up in Timbs but stopped
short of providing additional guidance as to
what constitutes an excessive fine in this context
or otherwise protecting property owners from
civil forfeiture's constant abuse. The decision is
disappointing for what it did not say, given that
there was ample opportunity to point out why
Indiana's drug civil forfeiture system is uniquely
abusive and blatantly unconstitutional, as
explained below.
The opinion's thorough and illuminating
discussion of the 800-year history of the excessive
fines clause (and the much longer and fascinating
history provided in Justice Clarence Thomas'
concurring opinion) are quite helpful to anyone

6

For The Defense

l

Vol. 4, Issue 2

raising an excessive fines issue. The history of
the clause shows that at common law a fine or
forfeiture exceeding the defendant's current
ability to pay or depriving him of his livelihood
(for example by taking away a farmer's land
or farming equipment) would be considered
unconstitutionally excessive.
No court watchers were surprised by the
unanimous decision, especially after the November
28, 2018, oral argument went very badly for
Thomas M. Fisher, Indiana's solicitor general.
For example, Justice Sonia Sotomayor asked
Fisher, "Are we trying to avoid a society that's
like the Star Chamber? And if we look at these
forfeitures that are occurring today...many
of them seem grossly disproportionate to the
crimes being charged." And Justice Neil Gorsuch
expressed surprise that Fisher was "still litigating
incorporation of the Bill of Rights. Really? Come
on, General." Justice Brett Kavanaugh then asked
Fisher, "Isn't it too late in the day to argue that
any of the Bill of Rights is not incorporated?"
Fisher was fortunate that Justice Thomas was
characteristically silent at oral argument. Thomas,
the justice who has been most troubled by civil
forfeiture abuse, would have heaped scorn
on Fisher's argument. Thomas has eloquently
explained-at length-why the court should



For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2

Contents
For the Defense - Vol. 4, Issue 2 - 1
For the Defense - Vol. 4, Issue 2 - 2
For the Defense - Vol. 4, Issue 2 - Contents
For the Defense - Vol. 4, Issue 2 - 4
For the Defense - Vol. 4, Issue 2 - 5
For the Defense - Vol. 4, Issue 2 - 6
For the Defense - Vol. 4, Issue 2 - 7
For the Defense - Vol. 4, Issue 2 - 8
For the Defense - Vol. 4, Issue 2 - 9
For the Defense - Vol. 4, Issue 2 - 10
For the Defense - Vol. 4, Issue 2 - 11
For the Defense - Vol. 4, Issue 2 - 12
For the Defense - Vol. 4, Issue 2 - 13
For the Defense - Vol. 4, Issue 2 - 14
For the Defense - Vol. 4, Issue 2 - 15
For the Defense - Vol. 4, Issue 2 - 16
For the Defense - Vol. 4, Issue 2 - 17
For the Defense - Vol. 4, Issue 2 - 18
For the Defense - Vol. 4, Issue 2 - 19
For the Defense - Vol. 4, Issue 2 - 20
For the Defense - Vol. 4, Issue 2 - 21
For the Defense - Vol. 4, Issue 2 - 22
For the Defense - Vol. 4, Issue 2 - 23
For the Defense - Vol. 4, Issue 2 - 24
For the Defense - Vol. 4, Issue 2 - 25
For the Defense - Vol. 4, Issue 2 - 26
For the Defense - Vol. 4, Issue 2 - 27
For the Defense - Vol. 4, Issue 2 - 28
For the Defense - Vol. 4, Issue 2 - 29
For the Defense - Vol. 4, Issue 2 - 30
For the Defense - Vol. 4, Issue 2 - 31
For the Defense - Vol. 4, Issue 2 - 32
For the Defense - Vol. 4, Issue 2 - 33
For the Defense - Vol. 4, Issue 2 - 34
For the Defense - Vol. 4, Issue 2 - 35
For the Defense - Vol. 4, Issue 2 - 36
For the Defense - Vol. 4, Issue 2 - 37
For the Defense - Vol. 4, Issue 2 - 38
For the Defense - Vol. 4, Issue 2 - 39
For the Defense - Vol. 4, Issue 2 - 40
For the Defense - Vol. 4, Issue 2 - 41
For the Defense - Vol. 4, Issue 2 - 42
For the Defense - Vol. 4, Issue 2 - 43
For the Defense - Vol. 4, Issue 2 - 44
For the Defense - Vol. 4, Issue 2 - 45
For the Defense - Vol. 4, Issue 2 - 46
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue1_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue3_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue2_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
https://www.nxtbookmedia.com