Sidebar: Curbing “Excessive” Forfeitures

The Eighth Amendment to the U.S. Constitution protects people from excessive fines, and it is not hard to see how a forfeiture could constitute punishment gone too far. For example, taking a home for a minor drug infraction punishable by only a modest fine would seem to be excessive—as would taking property from anyone not found guilty of a crime. ¹

Until recently, however, it was unclear whether the Eighth Amendment’s ban on excessive fines and forfeitures applied to states and localities as well as to the federal government. The U.S. Supreme Court resolved that question in February 2019; in Timbs v. Indiana, the Court confirmed that the Excessive Fines Clause applies to all levels of government—federal, state and local alike. Now the onus is on lower courts to breathe life into the Excessive Fines Clause by developing rules to determine when economic sanctions, including forfeitures, are unconstitutionally excessive. ²

History provides guideposts. The Excessive Fines Clause has a rich heritage, dating to at least Magna Carta in 1215. It embodies the principle that a fine or forfeiture cannot be disproportionate to the underlying crime. Nor can a fine or forfeiture be so punitive that it renders a person destitute or takes away their means of supporting themselves. That is why when Indiana tried to forfeit Tyson Timbs’ Land Rover, the trial judge refused. Tyson had been convicted of a minor drug charge and sentenced to probation and a small fine. Under the law, the maximum fine was $10,000, but that did not stop prosecutors from seizing and seeking to forfeit Tyson’s $42,000 vehicle. Deeming the forfeiture grossly disproportionate, the judge denied the forfeiture for violating the Excessive Fines Clause. ³

After working its way through the state court system, Tyson’s case eventually arrived at the U.S. Supreme Court. The Court held unanimously that the Excessive Fines Clause applies to the states and remanded the case to the Indiana Supreme Court to determine whether forfeiting Tyson’s vehicle would indeed be “excessive.” ⁴

In considering that question, the Indiana Supreme Court developed a new test that points the way forward for other courts. ⁵ The Court held that determining excessiveness involves two factors: (1) instrumentality and (2) proportionality. First, the property must be an instrumentality—or a means to the end—of the underlying crime. Second, the forfeiture cannot be “grossly disproportional” to the gravity of the offense. This analysis looks at all the circumstances of a particular crime and individual offender. For example, courts must consider how losing the property would affect its owner, the property’s value and any other sanctions imposed on the owner. Against these considerations of harshness, courts must weigh both the severity of the offense–the harm caused, statutory penalties and the offense’s relationship to other criminal activity—and the owner’s personal culpability. ⁶

Back at the trial court, the same judge once again denied the government’s request to forfeit Tyson’s car, this time using the Indiana Supreme Court’s new test. ⁷ While Tyson was guilty of selling a small amount of drugs on two occasions to undercover agents, the trial judge found that he was “no drug ‘kingpin.’” Rather, he committed his crime to feed his addiction—an addiction that began with prescription drugs for a foot injury—and only at the behest of undercover officers. To forfeit his car in these circumstances would be excessively punitive, the court reasoned, and deprive Tyson of his most valuable asset and his means of getting to work and drug treatment. Balancing these considerations, the court denied the forfeiture. After more than seven years of litigation, the government’s latest appeal remains pending.

For now, Tyson has his car back. ⁸ But even better, Indiana’s courts have given life to the Excessive Fines Clause, protecting all Hoosiers from excessive fines and forfeitures. Courts across the country would do well to follow in Indiana’s footsteps.