An Interpretive Puzzle

In Timbs v. Indiana, the Supreme Court will consider whether the Excessive Fines Clause of the Eighth Amendment should be incorporated against the States. This issue comes to the Court in the context of a challenge to state criminal forfeitures of property that are allegedly very disproportionate to the underlying offense. The State of Indiana, knowing that there are probably at least five votes on the Court to incorporate the Excessive Fines Clause, have responded with a clever argument. In rem forfeitures, they say, are not fines at all. Thus, the Court need not reach the incorporation issue at all.

I’m not sure this argument will succeed, in that the Justices may simply declare the Excessive Fines Clause incorporated and ask the Indiana Supreme Court to determine whether in rem forfeitures are fines. But suppose this does not happen. What to make of the State’s argument? They have amassed an impressive body of evidence that in rem forfeitures were not considered fines either in 1791 (the year the Eighth Amendment was ratified) or in 1868 (when the Fourteenth was ratified).

An originalist might well be persuaded that this means that in rem forfeitures are not subject to the Eighth Amendment. Perhaps they would be subject to Due Process Clause scrutiny (much as punitive damage awards are) under the Fourteenth Amendment, but that could be a different level of scrutiny. Another way of thinking about this, though, is that we should be looking more broadly at what fines meant in 1791 or 1868. Perhaps criminal in rem forfeitures were relatively rare in these periods or were only used in felony cases where there was no issue about excess.

Still another tack would be that the whole notion that there is a distinction between in rem and in personam actions is a legal fiction that has outlived its usefulness. Admiralty law, which I teach, still relies heavily on the fiction that actions are being brought against or by ship rather than its owners. In criminal law, though, the idea that a forfeiture of your car has nothing to do with the car’s owner is  absurd and, frankly, pretty hostile to property rights. Accordingly, to rely on this sort of legal fiction in defining a constitutional provision would be contrary to the purpose of that provision. What is the correct answer?


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3 Responses

  1. Joe says:

    SCOTUSBlog page with briefs:

    The Supreme Court in dicta split on the question of the incorporation of the Excessive Fines Clause, but there really is no good reason for it not to be incorporated. So, it’s sensible for them just to formally say so, if it still is causing some sort of confusion.

    I don’t think that question is close so it very well might turn on the other question cited which might be more divisive. If so, given the tenor of the Roberts Court, they might just remand to settle it. In fact, that would seem to be proper — the actual question presented is the incorporation matter. The other question might be worthwhile to decide but not here.

    • joe says:

      Well …

      Timbs does have the “question presented” as solely it the Excessive Fines Clause should be deemed incorporated. Indiana in the response brief adds the “in rem” part.

      I don’t understand this. Isn’t there ONE question presented, as set by the Court?

  2. Eighth Amendment Scholars says:

    What the historical record does show is that by the eighteenth century, the term “fine” in colonial America had come to be understood as encompassing a broad swath of sanctions. These included penalties payable in cash and in kind (i.e., forfeitures), and penalties made payable not only to the sovereign, but to private parties as well—and not strictly limited to nominally criminal proceedings. Historically, the terms “fines” and “forfeitures” were used interchangeably. Leading dictionaries of the Founding era suggest that the word “‘fine’ was understood to include ‘forfeiture’ and vice versa.” Austin v. United States, 509 U.S. 602, 614 n.7 (1993) (citing Founding-era sources).