Constitution Daily

Smart conversation from the National Constitution Center

Should the Excessive Fines Clause apply against the states?

September 5, 2018 by Lana Ulrich


Is there a situation where some rights guaranteed in the Bill of Rights don’t apply at a state level? A new case at the Supreme Court could better define the answer to that question, which has a long history at the Court.

The last time the Supreme Court “incorporated” a provision of the Bill of Rights to apply against the states was in 2010, in the McDonald v. City of Chicago case, when it ruled that the 14th Amendment prevents the states as well as the federal government from infringing on the Second Amendment right to keep and bear arms for the purpose of self-defense. 

In its next term, the Court will hear a case that might result in the incorporation of another Bill of Rights provision: the Eighth Amendment’s Excessive Fines Clause. 

The case, Timbs v. Indiana, asks whether the Eighth Amendment’s prohibition on excessive fines is also incorporated against the states under the 14th Amendment. The Eighth Amendment to the Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Tyson Timbs, an Indiana man, used his 2012 Land Rover to purchase and sell heroin in the state. After he pled guilty to dealing and conspiracy charges, he received a six-year sentence: one year of home detention and five years on probation. The state also sought forfeiture of his Land Rover, which Timbs had legally bought with proceeds from his father’s life insurance policy, because he had used the vehicle to transport drugs. The trial court and the Indiana Court of Appeals refused to allow the forfeiture, finding that it “would be “grossly disproportional to the gravity of [Timbs’s] offense” and such actions violated the Eighth Amendment’s Excessive Fines Clause. On appeal, the Indiana Supreme Court reversed and held that the Excessive Fines Clause does not apply against the states.

Timbs, represented by the Institute for Justice, appealed to the Supreme Court, arguing the Indiana Supreme Court’s decision“ deepens a growing divide on the question presented. Although two federal Circuit Appeals courts and at least 14 state high courts apply the Excessive Fines Clause to the States, a minority of courts—in Montana, Mississippi, Michigan, and now Indiana—believe that the Clause does not apply.” As a result, Timbs, along with millions of other residents of those states, are protected against excessive “fines and forfeitures imposed by the federal government but not against those imposed by state and local authorities.”

In our Interactive Constitution project, scholars Nathan Chapman and Kenji Yoshino explain, how much of the Bill of Rights has already been incorporated, but not all rights have at a state level. 
“One of the purposes of the 14th Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the 14th Amendment Privileges or Immunities Clause as a source of robust individual rights against the states in The Slaughter-House Cases decision,” they explain. “Since then, the Court has held that the Due Process Clause ‘incorporates’ many—but not all—of the individual protections of the Bill of Rights against the states.”

While there has been a “celebrated debate” about incorporation between factions of the Supreme Court over the years, “as a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states,” Chapman and Yoshino say. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes; the Fifth Amendment’s right to a grand jury trial; the Seventh Amendment’s right to jury trial in civil cases; and the Eighth Amendment’s prohibition on excessive fines.

In his case, Timbs’s attorneys argue that “the Eighth Amendment embodies three ‘parallel limitations’ on the government’s power to punish: the Cruel and Unusual Punishments Clause, the Excessive Bail Clause, and the Excessive Fines Clause. Together, these Clauses operate to secure a single, fundamental right to be free from excessive punishments.”

“And by any measure, the Excessive Fines Clause is deeply rooted in our nation’s legal tradition, making it an obvious candidate for incorporation,” they conclude.

The state of Indiana insists that Timbs’s case is not the right one for the Court to use to determine if the Excessive Fines Clause should be incorporated. The state says that the question wasn’t addressed or briefed in prior proceedings. The state also argues that the Court should avoid making a decision about the case because “every state constitution already prohibits excessive fines,” because no lower court has engaged in the incorporation analysis for itself, and because the issue would involve determining whether the Clause even applies to state civil asset forfeitures.

In June, the Supreme Court agreed to hear the case. As it proceeds through the merits-briefing stage and then to oral arguments later in the term, further arguments will help shed light as to whether it is time that the Excessive Fines Clause is incorporated, and the entire Bill of Rights comes one step closer to full incorporation.

Lana Ulrich is In-House Counsel of the National Constitution Center.


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