The Eighth Amendment1 guarantees the right to be free from excessively harsh punishment at the hands of the government. Yet in spite of the amendment’s deep roots in U.S. history and jurisprudence, a critical part of it had been left behind in the incorporation project: the Excessive Fines Clause.2 Last Term, in Timbs v. Indiana,3 the Supreme Court finally held that the clause was incorporated against the states,4 and further, that it encompassed civil forfeitures in addition to criminal fines.5 Notwithstanding this expansion of rights, Timbs may be more notable for the protection it did not guarantee. Historically, an individual’s ability to pay a fine or forfeiture was an essential factor in determining the fine’s excessiveness. Yet even after acknowledging this history, the Court in Timbs refrained from setting out a test that would consider a defendant’s ability to pay. Instead, it implicitly left that choice to the lower courts. But federal and state courts have never agreed on whether and how to consider a fine’s impact on a defendant’s livelihood, and appear particularly reluctant to consider ability to pay in forfeiture cases. And all too often, forfeitures –– especially state forfeitures –– that are actually excessive are not recognized as such without analyzing an individual’s ability to pay. Despite the long-awaited incorporation it achieved, Timbs may therefore leave some individuals effectively unprotected by the Excessive Fines Clause.
In 2013, Tyson Timbs purchased a Land Rover for $42,058.30, using life insurance proceeds he received upon the death of his father.6 Timbs had previously become addicted to opioids after being prescribed them for “persistent” pain; when his prescription expired, he began buying opioids from dealers and eventually became addicted to heroin.7 Timbs subsequently used the Land Rover to drive between Marion, Indiana, and Richmond, Indiana, to buy heroin.8 When Timbs’s funds ran out, a confidential informant directed him to undercover officers posing as heroin buyers.9 Timbs sold heroin to the officers on two occasions, using the Land Rover to travel to one of those sales.10 On his way to a third sale, Timbs was arrested and his vehicle was seized.11
Timbs was charged with “two counts of dealing in a controlled substance and one count of conspiracy to commit theft.”12 He pleaded guilty to one dealing count and the conspiracy count two years after his arrest and was sentenced to six years of home detention and probation.13 While Timbs’s case was pending, the State retained a private firm to file a civil action for the forfeiture of his vehicle.14 After hearing argument on the forfeiture complaint, the trial court ruled for Timbs, finding that forfeiture of the Land Rover — the value of which was roughly four times that of the $10,000 maximum criminal fine available — was “grossly disproportional to the gravity of the Defendant’s offense.”15 The State appealed the trial court’s ruling.16
The Indiana Court of Appeals affirmed.17 Writing for the panel, Judge Mathias18 recognized that the Supreme Court had not held the Excessive Fines Clause applicable to the states; however, the Indiana Court of Appeals had previously held that the clause did apply to state forfeiture statutes, and Judge Mathias saw “no reason to disagree with . . . prior opinion.”19 In applying the clause, he similarly found that the forfeiture “was grossly disproportionate to the gravity of Timbs’s offense,”20 relying primarily on the relationship between the value of the vehicle and the maximum statutory fine amount.21
The Supreme Court of Indiana reversed on the grounds that the U.S. Supreme Court had not incorporated the Excessive Fines Clause against the states.22 Justice Slaughter23 treated the lack of controlling precedent rather differently: he “decline[d] to find or assume incorporation until the Supreme Court decide[d] the issue authoritatively,”24 invoking as justification federalism concerns25 and prior Supreme Court dicta tending against incorporation.26 After finding that Indiana had proven it was entitled to the Land Rover,27 the court remanded with instructions to enter judgment for the State.28 Timbs petitioned for a writ of certiorari on the question of whether the Excessive Fines Clause was incorporated against the states under the Fourteenth Amendment.29
The U.S. Supreme Court reversed and remanded, holding that the Excessive Fines Clause is applicable to the states under the Fourteenth Amendment’s Due Process Clause.30 Writing for a unanimous Court,31 Justice Ginsburg began with the incorporation test, which asks whether the relevant Bill of Rights protection is “‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’”32 Justice Ginsburg then examined the history of the Excessive Fines Clause, “which ‘limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.’”33 She observed that the clause traced its origins to one of England’s earliest legal institutions, Magna Carta, which “required that economic sanctions ‘be proportioned to the wrong’ and ‘not be so large as to deprive [an offender] of his livelihood.’”34 The eventual “[a]doption of the Excessive Fines Clause” in the U.S. Bill of Rights reflected both English law and “colonial-era provisions” that limited fines according to principles of proportionality and an offender’s ability to pay.35 By the time of the Fourteenth Amendment’s ratification — the temporal checkpoint in the incorporation inquiry — “the constitutions of 35 of the 37 States . . . expressly prohibited excessive fines.”36 Turning to the present, the Court observed that today, “all 50 States” have such constitutional protections.37
Justice Ginsburg emphasized the Excessive Fines Clause’s value to a scheme of ordered liberty by highlighting the governmental abuses that the clause historically sought to prevent.38 Not only were excessive fines used to punish and control disfavored groups from Stuart-era England to the Reconstruction-era South,39 but fines also had the potential to be employed “to retaliate against or chill the speech of political enemies,” thus “undermin[ing] other constitutional liberties.”40 And because fines are unique among forms of punishment in that they “are a source of revenue” for the state, they must be regulated all the more carefully to protect against improper incentives.41 Because of the extensive historical record showing the continued importance of a prohibition on excessive fines, the Court readily found that the right was incorporated against the states.42
The Court briefly addressed and disposed of the State’s two arguments against Timbs.43 First, Indiana argued that civil in rem forfeitures were historically not subject to a proportionality requirement44 because they were not considered punitive;45 therefore, they could not be subject to the Excessive Fines Clause, which encompasses only sanctions that are punitive in nature.46 As the Court observed,47 this argument implicitly called for overruling Austin v. United States,48 which held that because in rem forfeitures “historically have been understood, at least in part, as punishment,”49 such forfeitures were governed by the Excessive Fines Clause whenever they embodied some punitive intent.50 Since the question of revisiting Austin was not properly before the Court, Justice Ginsburg declined to reconsider its precedent.51
Indiana’s “fallback”52 argument relied on an attempted redefinition of the right at issue: the State contended that even if in rem forfeitures were punitive and therefore subject to the Excessive Fines Clause, protection against state in rem forfeitures specifically was a right “neither fundamental nor deeply rooted” and therefore failed the incorporation test.53 The Court rejected this recharacterization, as it reflected a misunderstanding of the incorporation inquiry, which simply “ask[s] whether the right guaranteed — not each and every particular application of that right — is fundamental or deeply rooted.”54 Accordingly, once the Court determined that the Excessive Fines Clause was incorporated, any specific application, including to civil in rem forfeitures,55 received the same protection. The Court did not decide whether the forfeiture of Timbs’s vehicle was actually excessive, instead remanding for application of the clause.56
Justice Gorsuch wrote a one-paragraph concurrence.57 He suggested that the Fourteenth Amendment’s Privileges or Immunities Clause may be the more “appropriate vehicle for incorporation,” but acknowledged that “nothing in this case turn[ed] on that question.”58
Justice Thomas concurred in the judgment.59 Going one step beyond Justice Gorsuch, Justice Thomas would have affirmatively incorporated “the right to be free from excessive fines” through the Privileges or Immunities Clause.60 He argued that the prohibition on excessive fines was considered an “inalienable right”61 that the Privileges or Immunities Clause was understood to protect at the time of its ratification. Similarly to Justice Ginsburg, Justice Thomas cited a historical record proving the importance of protection from excessive fines at common law,62 a value that was carried through to the United States via individual state constitutions and the Federal Constitution.63 Because “the prohibition on excessive fines was a well-established and fundamental right of citizenship,”64 Justice Thomas found it more properly encompassed within the Privileges or Immunities Clause.
The pro-incorporation holding of Timbs was the correct (indeed, perhaps the inevitable65) outcome. However, in its commitment to stick narrowly to the question presented, the Court raised more issues than it resolved in its sparse opinion. Despite invoking the importance of ability to pay in the Excessive Fines Clause’s history, the Court did not set out, or even recommend, a test that would require assessing a fine’s impact on a defendant’s livelihood. Instead, it left untouched its existing Excessive Fines Clause jurisprudence, which simply endorses an open-ended proportionality inquiry and leaves unsettled the role of ability to pay. But as the doctrinal inconsistency among lower courts regarding ability to pay shows, a proportionality-only test is often in tension with the Eighth Amendment’s historic mandate to preserve livelihood. And because this dissonance between proportionality and ability to pay is most apparent in state-level forfeitures, Timbs’s incorporation may not adequately protect defendants in such cases from unconstitutional fines.
The Court’s historical reasoning appeared to indicate that preserving livelihood was a core function of the Excessive Fines Clause and its predecessors. In Justice Ginsburg’s narrative, a core requirement at common law was that a fine “not be so large as to deprive [an offender] of his livelihood.”66 She cited authorities from Blackstone to colonial-era laws echoing the requirement that fines preserve a man’s “contenement.”67 The Court also discussed the injustices that resulted from ignoring ability to pay excessive fines: for instance, “[w]hen newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead.”68 While the Court primarily discussed the excessive uses of fines specifically, it cited Austin as acknowledgment that civil forfeitures fit into this framework to the extent they are “at least partially punitive.”69 This analysis resonated both with the arguments Timbs made in briefing70 and with the emerging discourse arguing that effect on livelihood should be considered in Excessive Fines Clause jurisprudence for both historical and normative reasons.71
Despite the history the Court laid out, its remand declined to assign any doctrinal weight to ability to pay in an excessiveness analysis. This silence is in keeping with the Court’s trend. When remanding Austin for application of the Excessive Fines Clause to the civil forfeiture at issue, the Court similarly did not establish an excessiveness test, and instead simply alluded to a potential proportionality inquiry that considered the relationship between the “penalty” and “the offense committed.”72 At no point did the Court mention the defendant’s financial standing. Further, in the very passage where it first invoked ability to pay in Timbs, the Court cited as a counterpoint United States v. Bajakajian,73 the only Supreme Court case to apply the Excessive Fines Clause.74 Bajakajian established a test that looks solely to whether a forfeiture “is grossly disproportional to the gravity of a defendant’s offense.”75 Because the respondent did not raise the argument, the Court explicitly declined to consider effect on the defendant’s livelihood.76 Thus even as the Court again raised the potential significance of ability to pay in Timbs, it inserted ambiguity as to how that factor should, or should not, matter in future applications.
The Court’s lack of explication since Bajakajian has created a wealth of doctrinal inconsistency as to what role, if any, a fine’s impact on a person’s livelihood should play under the Excessive Fines Clause. Some lower courts have read Bajakajian as opening the door to consideration of ability to pay, either as part of77 or in addition to78 a proportionality inquiry. A few state courts that considered themselves bound by the Excessive Fines Clause pre-Timbs have also shown amenability to considering a defendant’s financial situation.79 Indeed, Timbs has already begun to make its mark: the Colorado Supreme Court has found the historical analyses in Bajakajian and Timbs to yield “persuasive evidence that a fine that is more than a person can pay may be ‘excessive’ within the meaning of the Eighth Amendment.”80 However, other courts have drawn from Bajakajian the exact opposite conclusion, barring any discussion of a defendant’s livelihood in an Eighth Amendment analysis.81
The conflict only deepens when courts grapple with the distinction between fines and forfeitures. Most courts are less inclined to consider a person’s ability to pay a forfeiture, likely reflecting the instinct that “the owner of an asset subject to forfeiture proceedings is, by definition, ‘able’ to pay.”82 For example, while the Colorado Court of Appeals has held that “in imposing a fine, a trial court must consider a defendant’s ability to pay,” it has excluded forfeitures from this protection in the same breath, explaining that “there is no need . . . to consider the defendant’s ability to pay because the assets seized are sufficient to satisfy the sanction.”83 However, at least one state court has held the opposite, finding that because “a home and a vehicle are often essential to one’s life and livelihood,” a “non-pecuniary subjective valuation” of such property is appropriate when determining the proportionality of a forfeiture.84 As part of this valuation, the court reasoned that consideration of “whether the forfeiture would deprive the property owner of his or her livelihood” is not only appropriate, but “entirely . . . consistent with the teachings of Bajakajian.”85 This analysis offers a rebuttal to the logic that someone forfeiting property is by default able to pay it, and implicitly respects the historical prerogative that a forfeiture must “permit an individual to maintain some minimal level of economic subsistence.”86 But such an expansive interpretation of protecting livelihood remains the minority view: most lower courts echo the distinction between fines and forfeitures with respect to ability to pay.87
This doctrinal confusion over ability to pay may have particularly visible consequences after Timbs because a proportionality-only test does not adequately protect individuals from government abuse of the forfeiture power at the state level. As in the federal system, state and local governments are heavily dependent on civil forfeitures for revenue; the extent to which police departments profit in particular is well documented.88 And although “much media attention is focused on federal civil forfeitures, the property of ordinary citizens is arguably more threatened by police practices under state civil forfeiture laws.”89 While incorporation of the Excessive Fines Clause will likely “reduc[e] law enforcement incentives to base seizure decisions on assets’ value and liquidity,”90 it may not as effectively deter the mass seizure of lower-value assets from those least able to pay91 or least able to contest their forfeitures in court. For instance, a major source of forfeiture revenue is the seizure of petty cash.92 These assets are likely minor enough to satisfy a proportionality test when compared with the alleged offense.93 But given the financial status of the individuals most often fined,94 they are more likely to suffer financially from the seizure of even minor assets.95 On the other end of the spectrum, forfeitures of higher value items, such as houses, likely also satisfy a proportionality test.96 But those forfeitures too violate the historical spirit of the Excessive Fines Clause: surely a person’s “contenement” encompasses their home. The experience of people paying criminal justice debt more broadly also evinces the degree to which preservation of livelihood is ignored in the fines and fees process.97 Thus even beyond forfeiture, the Court risks leaving unresolved an economically unjust doctrine for future fines and fees jurisprudence in the states.
As Timbs was pending, commentators speculated whether the case signaled “the end of civil asset forfeiture.”98 This seems an unlikely end result. Indeed, the dearth of guidance in application of the Excessive Fines Clause and the powerful government incentives at the subfederal level may well weaken Timbs’s potential impact. The Court has “expressed a desire that the [Excessive Fines] Clause serve as a bulwark against the risk that the government will . . . take advantage of the revenue generating capacity of fines”;99 it remains to be seen whether Timbs, in its caution, will adequately protect against that risk.