Guest Post by Darpana Sheth of the Institute of Justice

We are pleased to present this guest blog by Darpana Sheth, who is a senior attorney with the Institute for Justice (“IJ”).  As Ms. Sheth explains, the U.S. Supreme Court will hear argument later this Fall in Timbs v. State of Indiana, one of the most anticipated cases this term, and which will test severely civil forfeiture laws.  As Ms. Sheth notes, Mr. Timbs lost a “$42,000 vehicle for selling less than $400 worth of drugs.”  Civil forfeiture is a unique issue on which traditional rivals across the political spectrum can agree, because it can unite individual and property right interests.

Ms. Sheth serves as Director of IJ’s Nationwide Initiative to End Forfeiture Abuse. Currently, she is lead counsel in an unprecedented federal class action against the City of Philadelphia, the Philadelphia District Attorney’s Office, and state court judges for their egregious civil-forfeiture practices. Although the following is subject to approval by the Court, this class action has secured an extremely favorable settlement agreement.

Previously, Ms. Sheth represented the State of New York as an Assistant Attorney General, worked as a litigator at Chadbourne & Parke, LLP, and clerked for the Honorable Jerome A. Holmes of the U.S. Court of Appeals for the Tenth Circuit.  We hope that you enjoy this discussion by Ms. Sheth of these important issues. -Peter Hardy

This fall, the U.S. Supreme Court will hear argument in Timbs v. State of Indiana, one of the most anticipated cases this term. At issue is whether the Eighth Amendment’s prohibition against excessive fines applies to state and local governments just as it has applied to the federal government since 1791. (Or, using the technical term, whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States.)

The case involves the civil forfeiture of a $42,000 vehicle for selling less than $400 worth of drugs. As recounted in a video news release, Tyson Timbs was prescribed opioids for foot pain. In an all-too-familiar tale of opioid addiction, Timbs turned to heroin when his prescription ran out. When police arrested him and seized his vehicle during a drug sting, Timbs pleaded guilty and was sentenced to six years—one year on home detention (with his aunt) and five years on probation, including a court-supervised addiction-treatment program. The court also assessed Timbs more than $1,200 in criminal court costs and fees.

Going beyond this criminal prosecution, state prosecutors sought to civilly forfeit Timbs’s vehicle, which he had purchased with the proceeds from a life insurance policy after his father’s death. Prosecutors sought to take it on the basis that Timbs had driven it to make the drug sales. Under state law, prosecutors could either keep the vehicle or auction it off and keep the proceeds. Both the trial court and the appeals court ruled that the forfeiture would constitute an excessive fine in violation of the Eighth Amendment. But the Indiana Supreme Court held that the Excessive Fines Clause does not apply to state and local authorities and allowed the forfeiture.

Most provisions of the Bill of Rights have been incorporated against the states. IJ’s merit’s brief argues that the original understanding of the Eighth and Fourteenth Amendments supports applying the safeguard against excessive fines to state and local governments. The right to be free from excessive fines is fundamental and applies to the States whether through the Due Process Clause or the Privileges or Immunities Clause. The power to fine is—and has always been—a formidable one. And unlike every other form of punishment, fines and forfeitures are a source of revenue for the government, making them uniquely prone to abuse. Scores of organizations spanning the political spectrum filed 18 amici briefs in support of Timbs.

Justice Clarence Thomas recently questioned “whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.” The Timbs case provides the High Court with its first opportunity in more than 20 years reexamine the constitutional limits of civil forfeiture. Hopefully, it is one in a series of cases that the Supreme Court takes on to fundamentally reassess the constitutionality of these pernicious practices.

But the Timbs case has implications beyond forfeiture. 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. In Ferguson, Missouri, for example, the U.S. Department of Justice determined that “(c)ity officials have consistently set maximizing revenue as the priority for . . . law enforcement activity.” Just five miles south of Ferguson, low-income residents in Pagedale have been fined thousands of dollars for trivial offenses like missing curtains, aging paint, walking on the left side of crosswalks, and enjoying a beer within 150 feet of a grill. And in Charlestown, Indiana, local officials imposed crippling fines on low-income homeowners to force them to sell their land to a private developer. This case provides an opportunity for the U.S. Supreme Court to establish that the Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.

A favorable ruling would help protect millions of Americans from abusive fines, fees, and forfeitures.

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