by Mitch Kokai
Senior Political Analyst, John Locke Foundation
[T]he U.S. Supreme Court heard oral argument in a case that may rein in abusive property seizures by state and local governments through the highly controversial legal tool known as civil asset forfeiture.
The case at issue involves a man named Tyson Timbs, who sold $225 worth of heroin to undercover police officers on two occasions. …
… He was sentenced to a year of home confinement and five years of probation, and assessed roughly $1,200 in court costs and fees. Then the state of Indiana moved to forfeit the vehicle he was driving that day: a $42,000 Land Rover, which Timbs purchased with funds from his father’s life insurance policy. …
… The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
While the Supreme Court has ruled that the prohibitions on excessive bail and cruel and unusual punishment apply against the states in Schilb v. Kuebel (1971) and Robinson v. California (1962), the court has indeed never held that the Excessive Fines Clause applies to the states as well.
After this week’s argument, that appears likely to change. At oral argument, the justices appeared to uniformly consider the question of incorporation to be settled.
When the lawyer for Indiana, Solicitor General Thomas Fisher, stood up at the podium, Justice Neil Gorsuch said, “We all agree that the Excessive Fines Clause is incorporated against the states … can we at least get the theoretical question off the table?”
Justice Brett Kavanaugh chimed in, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”