That would be a victory for Tyson Timbs, whose $42,000 Land
Rover was seized by the state of Indiana after he was arrested for selling a
small amount of heroin to undercover cops for $400. A trial judge ruled that
taking the SUV was a grossly disproportionate punishment, on top of other fines
and a year of house detention.
An Indiana appeals court agreed. But the state Supreme Court
ruled that the Constitution's ban on excessive fines, unlike nearly all the other
provisions of the Bill of Rights, has never been applied to the states.
On Wednesday, Indiana Solicitor General Thomas Fisher
defended that proposition in the U.S. Supreme Court, facing a chorus of
skepticism from justices, conservative and liberal.
Justice Neil Gorsuch led off questioning Fisher. Whatever
the scope of the excessive fines clause, he said, "can we at least
agree" it applies to the states?
Not when the fine is levied against property, as it is here,
Fisher said.
"Really?" shot back Gorsuch, "Come on,
General!"
Justice Stephen Breyer hypothesized about the limits of
Fisher's argument. Could the state, he asked, seize a "Bugatti, Mercedes
or a special Ferrari, or even jalopy" if the driver was speeding 5 miles
an hour over the limit?
"The answer," the pained-looking Fisher replied,
"is yes."
Arguing the contrary position was Wesley Hottot of the
Institute for Justice, representing Timbs.
Chief Justice John Roberts offered the most aggressive
questioning, observing that there is a "well-established" distinction
between fining someone $500,000 and confiscating assets used in a crime.
Hottot replied that confiscating property is "a very
different animal" today than it was hundreds of years ago when pirate
ships were the object of civil forfeiture. In contrast, he said, today police
can go after every person's property, even in cases where the owner of the
property is blameless and has not been charged.
Justice Samuel Alito pointed out that in this case, Timbs
had been convicted of a crime. That's correct, Hottot replied, noting that the
trial judge in this case sentenced Timbs at the low end of the scale and ruled
against the state's attempt to confiscate the truck, saying it was
disproportionate.
Several justices wanted Hottot to clarify whether he was
asking the court to adopt a proportionality rule.
Not at this stage, Hottot said. All we are asking is that
the court overrule the Indiana Supreme Court and declare that the
Constitution's ban on excessive fines applies to the states, not just the
federal government. That, he said, would give the lower courts the opportunity
to work out what standards to apply.
Roberts opined that that may be like asking the court to buy
a "pig in a poke."
"You say, don't worry what it means," Roberts
said, "just incorporate it [to apply to the states] and then figure it out
later on."
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