TIMBS ON REMAND

This is the fourth CLB installment pertaining to convicted (but small-time) heroin dealer Tyson Timbs and his 2012 Land Rover. The first installment was an appellate case note on the October 20, 2016 COA affirmance (2/1) of the trial court’s holding against the state on its civil complaint for forfeiture of Timbs’ 2012 Land Rover that had been used to transport small amounts of heroin. Notably, the Land Rover was purchased honestly enough from a life insurance benefit payable to Timbs on the death of his father. The second CLB installment was a review of the SCOTSI’s November 2, 2017 reversal of the trial court ruling. The CLB was rightly critical of the SCOTSI in that appellate case note. The theory of the SCOTSI reversal was that the 8th Amendment’s “excessive fines” prohibition was never incorporated into the 14th Amendment Due Process Clause so as to be applicable to the States. Then on February 20, 2019 the Supreme Court of the United States (SCOTUS) held otherwise. See 139 S.Ct 682 (2019).

On remand to consider the 8th amendment propriety of a forfeiture of Timbs’ Land Rover, the SCOTSI handed down a lengthy Opinion of 33 slip opinion pages followed by the lone dissent of Justice Slaughter, author of the Opinion reversed by the SCOTUS. The SCOTUS remand did not say what standards or what test would apply to the evaluation of 8th Amendment propriety of the forfeiture. While there is SCOTUS case authority for measuring the 8th amendment bounds of an in personam forfeiture, the bounds of an in rem forfeiture (like the Land Rover) seem not to have been squarely addressed in the high court.

On the Timbs remand the Majority Opinion (Rush, C.J.) explained that in rem forfeiture becomes punitive (and thus a “fine” for 8th amendment analysis) when it exceeds that which would be merely remedial. Then there is the question of whether the punitive “fine” is excessive. Here is the entire 8th Amendment text:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

By comparison, here is the text of the roughly parallel provision from the “Bill of Rights” at Article 1 § 16 of the Indiana Constitution.

“Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.”

Notably, the Indiana text holds for proportionality in penalties. The trial court in Timbs ruled against forfeiture of the Land Rover citing a lack of proportionality. For instance, the vehicle had been purchased a few months pre-arrest for $42,000.00 while the maximum fine for Timbs’ criminal offense was $10,000.00.

In its findings below (favoring Mr. Timbs) the trial court found that a forfeiture of the Land Rover would be excessive and “grossly disproportional to the gravity of the defendant’s offense.” This language of proportionality is present in § 16 but absent from the 8th Amendment. Although the trial court seemed to reference § 16 (without express citation to it), the SCOTSI chose not to consider § 16 in its reversal. Likewise, the Majority Opinion on remand from the SCOTUS addressed only the 8th Amendment, to the exclusion of § 16.

Said Majority Opinion held for proportionality as a principle of 8th Amendment review of a punitive forfeiture. Excessiveness of such a punitive forfeiture was to be evaluated under “totality of circumstances” (rather than “strict”) proportionality. The forfeiture could be excessive if its harshness is disproportionate to the gravity of the offense and to the property owner’s culpability. This standard should apply now to in rem forfeitures where the target of forfeiture is property used as an “instrumentality” of the underlying crime. The forfeiture of “fruits of criminal activity” may be scrutinized differently.

In lone dissent, Justice Slaughter wrote against “proportionality” scrutiny of the in rem forfeiture of an instrumentality of crime.

The Timbs majority sent the case back to the trial court for a new evaluation based on the holdings of the Opinion. That strikes the CLB as silliness in that the trial court already found that a forfeiture of the vehicle would be “grossly disproportionate to the gravity of the defendant’s offense.” The additional silliness of the entire Timbs saga is in the avoidance of discussion of Article 1 § 16 of the Indiana Constitution, which presents express language of proportionality in penalties.