The Supreme Court today released two opinions in argued cases, and one of them included the rather uncommon sight of a right established in the Bill of Rights being incorporated against the states through the 14th Amendment's Due Process Clause. Here are the case reviews:
Timbs v. Indiana, 17-1091 (Supreme Court of Indiana)
MAJ: Ginsburg, joined by Roberts, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
Con: Gorsuch
ConJud: Thomas
The Eighth Amendment forbids the imposition of "Excessive Fines" as part of a sentence. While there is no exact mathematical formula for what is excessive, courts historically look to the underlying nature of the offense and look for some sense of proportion. For example, issuing a fine of $100,000 for crossing a road outside of a crosswalk is obviously a disproportionate penalty for a fairly minor offense.
Not all fines come in the form of a direct monetary assessment, however. In virtually every jurisdiction, forfeiture statutes exist that allow for personal property that is used in the commission of a crime to be seized, in many cases regardless of its value and regardless of the source of funds used to acquire the property. In 1993, the Supreme Court ruled in Austin v. United States, 509 U.S. 602 that these civil forfeitures of property (called in rem forfeitures) counted as fines if they were levied at least partially for a punitive purpose. I can think of very few instances when seizure of property as part of a sentence for comission of a crime would be non-punitive, so these property forfeitures should generally be viewed as subject to the Eighth Amendment prohibition against excessive fines.
In this case, a man was convicted of a drug dealing offense and a conspiracy to commit theft offense. He ended up serving time in home detention, going on parole, and being fined $1,203 directly, along with having to forfeit an SUV worth about $42,000 that was used in the comimssion of the crime. The defendant argued in Indiana state court that this was a violation of the Eighth Amendments Excessive Fines clause, while Indiana countered that the protections against in rem forfeitures were not incorporated against the states.
If you haven't come across this concept before, the argument is fairly straight-forward. The Bill of Rights that appears in the Constitution and with which we are mostly quite familiar (Right to Free Speech, Right to Bear Arms, etc etc) only apply to the Federal Government, as written. However, after the passage of the 14th Amendment the Court began to "incorporate" those rights against the states through a theory called "Substantive Due Process." Judicial conservatives tend to be very much dislike this theory (see Justice Thomas's concurrence in judgment later on), arguing that there is nothing "substantive" about "process" or "procedural" rights - but nonetheless the Court has been following this doctrine (even if the name itself wasn't used) as far back as the 19th Century and it is well-established.
Incorporation works through the Due Process Clause of the 14th Amendment, which says that no one shall be deprived of life, liberty, or property without due process of law. Since the failure to honor certain rights essentially denies one of due process indirectly, such violations run afoul of "Substantive Due Process" and so are barred Constitutionally. This little trick means that the First Amendment, for instance, applies just as much against a State as it does against the Federal government. At this point, most of the Bill of Rights has been officially incorporated.
The standard for determining whether a right is incorporated is to ask whether the right is "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history or tradition." In this case, there is simply no question prohibiting excessive fines meets both prongs of the test quite easily. Prohibitions against excessive fines have been established in English law since even before Magna Carta. Such protections have been part of every charter of liberty and rights that has been drawn up since William conquered England, essentially meaning there is 1000 years of clear historical precedent that excessive fines are cause of significant complaint and unrest. The notion that a state or local government could be free to utilize them is frankly bizarre, and that's why there is not a single Justice on the Supreme Court that would rule otherwise.
Indiana tried a bit of sleight of hand, arguing that while the Excessive Fines doctrine may be well established and worthy of incorporation, that its application in the case of in rem forfeitures was not in the same category, and lacked the fundamental nature of the basic right. None of the Justices took this argument seriously. Justice Ginsburg stated clearly that this kind of parsing of the basic right is not how the Court does its business. For instance, protections stemming from the First Amendment that arise in the context of social media use are still protected by the First Amendment even though social media obviously hasn't been around for long enough to meet the "fundamental" or "deeply rooted" tests - the underlying "Free Speech" right is what matters, not the specific context in which it is applied. The same is true here - the underlying "Excessive Fines" right is what is in question, not the specific question of its application to in rem forfeitures.
This is an excellent ruling. States and local governments have been using civil forfeiture for the purpose of raising money without doing the hard work of raising taxes or cutting expenses. After all, who is going to stand up for criminals having property seized? It's not exactly a popular position to take, sadly enough. This is an abusive, clearly unconstitutional practice that unbelievably has gone on for far too long, and it's a testament to the institution of the Supreme Court that it unanimously agreed the practice needed to end.
Justice Thomas wrote a lengthy Concurrence in the Judgment in this case that is mostly historical in nature, with many pages of discussion demonstrating how significant generations and generations of English subjects found the Excessive Fines prohibition to be. This section was perfectly in agreement with the majority, but the difference is in what Justice Thomas does with this information. Rather than incorporate the Excessive Fines Clause through the mechanism of Substantive Due Process, which as a judicial conservative he believes to be nothing more than a mealy-mouthed fiction, he would use the virtually barren "Privileges or Immunities Clause" of the 14th Amendment. That Clause seeks to protect the Privileges or Immunities of Citizens against imbridgement by a State directly. While a 19th Century Supreme Court ruling essentially nullified the Privileges or Immunities Clause (at least for most purposes and until quite recently), Justice Thomas would revitalize it as an instrument for essentially recognizing the fundamental rights recognizing or implied in the Bill of Rights as applying against the states. Since freedom from Excessive Fines is clearly such a privilege or immunity of US Citizenship, the Clause would protect citizens from excessive fines including excessive in rem forfeitures.
Finally, Justice Gorsuch wrote separately to say that he essentially agrees with Justice Thomas, but that the long history of relying on Substantive Due Process as the method of incorporation rather than the Privileges or Immunities Clause may as well be respected where, as here, nothing substantive hinges on the question of which mechanism is being used to accomplish the incorporation.
Dawson v. Steager, 17-419 (Supreme Court of Appeals of West Virginia)
MAJ: Gorsuch (unanimous)
This case deals with a fairly obscure provision of law codifed at 4 U.S.C. sec 111 which allows for a state to tax the "pay or compensation of officers or employees of the United States," but only when such taxation does not discriminate because of the source of the pay or compensation. West Virginia offers a tax exemption to certain qualifying law enforcement officers after they retire, but retired Federal officers who performed similar duties are ineligible for the credit. This is exactly on point with the prohibition found in 4 U.S.C. sec 111 - Federal officers who retire in West Virginia are not eligible for the exemption because of the "source of funds," i.e. the Federal Goverment.
Justice Gorsuch's short, eminently readable opinion goes into significant detail on how West Virginia seeks to get around its blatant violation of the law, but fails. Amongst the arguments put forward by the state are that Federal officers are no worse off than other non-police citizens in West Virginia (True, but this mistakes the inquiry - federal officers need to be compared to similarly situated state officers, not to people who were already ineligible), and that the state had only good purposes in mind when establishing the law (irrelevant to the inquiry because, again, this case focuses more on what was codifed in the law rather than what kind of post-hoc excuse the state can come up with. After batting down a few more arguments and pointing out that they are pretty vacuous, Gorsuch puts West Virginia out of its misery and appropritely finds for the Plaintiff, sending the case back to West Virginia to be disposed of appropriately.
Timbs v. Indiana, 17-1091 (Supreme Court of Indiana)
MAJ: Ginsburg, joined by Roberts, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
Con: Gorsuch
ConJud: Thomas
The Eighth Amendment forbids the imposition of "Excessive Fines" as part of a sentence. While there is no exact mathematical formula for what is excessive, courts historically look to the underlying nature of the offense and look for some sense of proportion. For example, issuing a fine of $100,000 for crossing a road outside of a crosswalk is obviously a disproportionate penalty for a fairly minor offense.
Not all fines come in the form of a direct monetary assessment, however. In virtually every jurisdiction, forfeiture statutes exist that allow for personal property that is used in the commission of a crime to be seized, in many cases regardless of its value and regardless of the source of funds used to acquire the property. In 1993, the Supreme Court ruled in Austin v. United States, 509 U.S. 602 that these civil forfeitures of property (called in rem forfeitures) counted as fines if they were levied at least partially for a punitive purpose. I can think of very few instances when seizure of property as part of a sentence for comission of a crime would be non-punitive, so these property forfeitures should generally be viewed as subject to the Eighth Amendment prohibition against excessive fines.
In this case, a man was convicted of a drug dealing offense and a conspiracy to commit theft offense. He ended up serving time in home detention, going on parole, and being fined $1,203 directly, along with having to forfeit an SUV worth about $42,000 that was used in the comimssion of the crime. The defendant argued in Indiana state court that this was a violation of the Eighth Amendments Excessive Fines clause, while Indiana countered that the protections against in rem forfeitures were not incorporated against the states.
If you haven't come across this concept before, the argument is fairly straight-forward. The Bill of Rights that appears in the Constitution and with which we are mostly quite familiar (Right to Free Speech, Right to Bear Arms, etc etc) only apply to the Federal Government, as written. However, after the passage of the 14th Amendment the Court began to "incorporate" those rights against the states through a theory called "Substantive Due Process." Judicial conservatives tend to be very much dislike this theory (see Justice Thomas's concurrence in judgment later on), arguing that there is nothing "substantive" about "process" or "procedural" rights - but nonetheless the Court has been following this doctrine (even if the name itself wasn't used) as far back as the 19th Century and it is well-established.
Incorporation works through the Due Process Clause of the 14th Amendment, which says that no one shall be deprived of life, liberty, or property without due process of law. Since the failure to honor certain rights essentially denies one of due process indirectly, such violations run afoul of "Substantive Due Process" and so are barred Constitutionally. This little trick means that the First Amendment, for instance, applies just as much against a State as it does against the Federal government. At this point, most of the Bill of Rights has been officially incorporated.
The standard for determining whether a right is incorporated is to ask whether the right is "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history or tradition." In this case, there is simply no question prohibiting excessive fines meets both prongs of the test quite easily. Prohibitions against excessive fines have been established in English law since even before Magna Carta. Such protections have been part of every charter of liberty and rights that has been drawn up since William conquered England, essentially meaning there is 1000 years of clear historical precedent that excessive fines are cause of significant complaint and unrest. The notion that a state or local government could be free to utilize them is frankly bizarre, and that's why there is not a single Justice on the Supreme Court that would rule otherwise.
Indiana tried a bit of sleight of hand, arguing that while the Excessive Fines doctrine may be well established and worthy of incorporation, that its application in the case of in rem forfeitures was not in the same category, and lacked the fundamental nature of the basic right. None of the Justices took this argument seriously. Justice Ginsburg stated clearly that this kind of parsing of the basic right is not how the Court does its business. For instance, protections stemming from the First Amendment that arise in the context of social media use are still protected by the First Amendment even though social media obviously hasn't been around for long enough to meet the "fundamental" or "deeply rooted" tests - the underlying "Free Speech" right is what matters, not the specific context in which it is applied. The same is true here - the underlying "Excessive Fines" right is what is in question, not the specific question of its application to in rem forfeitures.
This is an excellent ruling. States and local governments have been using civil forfeiture for the purpose of raising money without doing the hard work of raising taxes or cutting expenses. After all, who is going to stand up for criminals having property seized? It's not exactly a popular position to take, sadly enough. This is an abusive, clearly unconstitutional practice that unbelievably has gone on for far too long, and it's a testament to the institution of the Supreme Court that it unanimously agreed the practice needed to end.
Justice Thomas wrote a lengthy Concurrence in the Judgment in this case that is mostly historical in nature, with many pages of discussion demonstrating how significant generations and generations of English subjects found the Excessive Fines prohibition to be. This section was perfectly in agreement with the majority, but the difference is in what Justice Thomas does with this information. Rather than incorporate the Excessive Fines Clause through the mechanism of Substantive Due Process, which as a judicial conservative he believes to be nothing more than a mealy-mouthed fiction, he would use the virtually barren "Privileges or Immunities Clause" of the 14th Amendment. That Clause seeks to protect the Privileges or Immunities of Citizens against imbridgement by a State directly. While a 19th Century Supreme Court ruling essentially nullified the Privileges or Immunities Clause (at least for most purposes and until quite recently), Justice Thomas would revitalize it as an instrument for essentially recognizing the fundamental rights recognizing or implied in the Bill of Rights as applying against the states. Since freedom from Excessive Fines is clearly such a privilege or immunity of US Citizenship, the Clause would protect citizens from excessive fines including excessive in rem forfeitures.
Finally, Justice Gorsuch wrote separately to say that he essentially agrees with Justice Thomas, but that the long history of relying on Substantive Due Process as the method of incorporation rather than the Privileges or Immunities Clause may as well be respected where, as here, nothing substantive hinges on the question of which mechanism is being used to accomplish the incorporation.
Dawson v. Steager, 17-419 (Supreme Court of Appeals of West Virginia)
MAJ: Gorsuch (unanimous)
This case deals with a fairly obscure provision of law codifed at 4 U.S.C. sec 111 which allows for a state to tax the "pay or compensation of officers or employees of the United States," but only when such taxation does not discriminate because of the source of the pay or compensation. West Virginia offers a tax exemption to certain qualifying law enforcement officers after they retire, but retired Federal officers who performed similar duties are ineligible for the credit. This is exactly on point with the prohibition found in 4 U.S.C. sec 111 - Federal officers who retire in West Virginia are not eligible for the exemption because of the "source of funds," i.e. the Federal Goverment.
Justice Gorsuch's short, eminently readable opinion goes into significant detail on how West Virginia seeks to get around its blatant violation of the law, but fails. Amongst the arguments put forward by the state are that Federal officers are no worse off than other non-police citizens in West Virginia (True, but this mistakes the inquiry - federal officers need to be compared to similarly situated state officers, not to people who were already ineligible), and that the state had only good purposes in mind when establishing the law (irrelevant to the inquiry because, again, this case focuses more on what was codifed in the law rather than what kind of post-hoc excuse the state can come up with. After batting down a few more arguments and pointing out that they are pretty vacuous, Gorsuch puts West Virginia out of its misery and appropritely finds for the Plaintiff, sending the case back to West Virginia to be disposed of appropriately.