Excessive Fines, Forfeitures, and Incorporation

The U.S. Supreme Court held this morning in Timbs v. Indiana that the Excessive Fines Clause of the Eighth Amendment, originally applicable only the to federal government, applies to the states as well through the Fourteenth. The court held in 1993 that "excessive fines" includes excessive forfeitures. Not surprisingly, there is no dissent as to the result. The case goes back to the Indiana Supreme Court for application to the facts of the case -- forfeiting a Land Rover for transporting drug where the vehicle is worth four times the maximum fine for the offense.

This is likely the last provision of the Bill of Rights to be "incorporated."  The Court decided over a century ago that the already-obsolete grand jury clause would not be incorporated and is unlikely to revisit that decision. Incorporating the Seventh Amendment and requiring jury trials in civil cases for $21 is also not going to happen. The Third Amendment, quartering troops in private homes in peacetime, is unlikely to arise, to put it mildly.

Justices Thomas and Gorsuch write separately on the question of whether the Privileges or Immunities Clause rather than the Due Process Clause should be the mechanism of incorporation. Justice Thomas says yes, and Justice Gorsuch says maybe. That would be a better fit to the original understanding of the Fourteenth Amendment. Justice Gorsuch notes that nothing in this case turns on that question, though.

Excessive Fines, Forfeitures, and Incorporation curated from Crime and Consequences Blog