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?