Will: Lucrative law enforcement will become lawless

WASHINGTON - Tyson Timbs made a mistake, but not one as important as Indiana's Supreme Court made in allowing to stand the punishment the state inflicted on him. He was a drug addict - first with opioids prescribed for a work-related injury, then heroin - when his father died. He blew the $73,000 insurance payout on drugs and a $41,558 Land Rover, which he drove when selling $225 worth of drugs - two grams of heroin - to undercover police officers. Timbs' vehicle was seized and kept, which amounted to a fine more than 184 times larger than the sum involved in his offense. Come Wednesday, the U.S. Supreme Court will hear arguments concerning whether this violated the Eighth Amendment, which says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Emphasis added.)

The seizure was done under Indiana's version of civil forfeiture laws, which allow governments to seize property used in the commission of a crime. As they are often used, such laws are incentives for abusive governments, because the entity that seizes the property frequently is allowed to profit by keeping or selling it. Lucrative law enforcement will become lawless.

Under the "incorporation" doctrine, the Supreme Court has explicitly applied, through the 14th Amendment, most of the Bill of Rights' protections, piecemeal, against states' behaviors. The court's standard for doing so is whether a particular provision of the Bill of Rights is "deeply rooted" in the nation's history and traditions, and is fundamental to "our scheme of ordered liberty." The Cruel and Unusual Punishment Clause was incorporated in 1962, the Excessive Bail Clause in 1971. The punishments provision protects Americans' bodies, the bail provision protects their freedom. The fines provision is intended to protect their property.

In a 1989 case, Justice Sandra Day O'Connor sensibly wrote that there is "no reason to distinguish one Clause ... from another for purposes of incorporation." But although two federal judicial circuits and at least 14 state high courts apply the Excessive Fines Clause to the states, and although seven times the court (or two or more justices writing separately) has said that the Eighth Amendment as a whole applies to the states, it has never had an occasion to explicitly apply the Excessive Fines Clause.

This allowed Indiana's Supreme Court to be permissive regarding the state's forfeiture practices. The court unanimously rejected Timbs' argument, that of the trial court, and of the appeals court. In a hearing on the state's civil forfeiture request, the trial court said that making Timbs forfeit his vehicle would be "grossly disproportionate to the gravity of [his] offense" and hence a violation of the Excessive Fines Clause.

The state's Supreme Court, however, held that the U.S. Supreme Court has been insufficiently "definitive." The Indiana justices said that although "our colleagues on the Court of Appeals and the trial court may be correct in foretelling where the [U.S.] Supreme Court will one day lead on whether to apply the [Excessive Fines] Clause to the states," until the clause is unambiguously applied, Indiana fines can be grossly disproportionate without violating the U.S. Constitution.

Indiana's Supreme Court insists that the U.S. Supreme Court is guilty of a "lack of clear direction" regarding incorporation of the Excessive Fines Clause. Presumably, the U.S. Supreme Court accepted Timbs' case in order to explicitly give nationwide force to one of the few remaining provisions of the Bill of Rights not specifically incorporated. It is about time: Nine of the original 13 states had equivalents of the Excessive Fines Clause because they recognized that economic sanctions can be as punishing as incarceration.

The 14th Amendment changed the relationship between individuals and the states, establishing that state borders should have no bearing on federally protected rights. Indiana purports to want constitutional specificity regarding excessive fines. It will have it by June.

In determining when fines are excessive, courts must adopt something akin to former Justice Potter Stewart's famous axiom concerning pornography: You know excessiveness when you see it. Justices who fancy themselves "originalists" should acknowledge that those who wrote and ratified the Bill of Rights understood that courts were going to have to give content to the concept of excessiveness (as well as to cruelty and unusualness in punishments, and unreasonableness regarding searches and seizures, and other open-textured constitutional language). Doing so is not judicial "activism," it is judging. Failing to do so is a dereliction of the duty to enforce constitutional guarantees.

George Will's email address is

(c) 2018, Washington Post Writers Group

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