Petition for Writ of Certiorari — Tyson Timbs, Petitioner v. Indiana

No. 17-________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------TYSON TIMBS AND A 2012 LAND ROVER LR2,

Petitioners,

v.

STATE OF INDIANA,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Indiana Supreme Court

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------DARPANA M. SHETH

SAMUEL B. GEDGE

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

dsheth@ij.org

sgedge@ij.org

WESLEY P. HOTTOT*

INSTITUTE FOR JUSTICE

10500 NE 8th Street,

Suite 1760

Bellevue, WA 98004

(425) 646-9300

whottot@ij.org

*Counsel of Record

Counsel for Petitioners

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the Eighth Amendment’s Excessive

Fines Clause is incorporated against the States under

the Fourteenth Amendment.

ii

PARTIES TO THE PROCEEDINGS

Petitioners are Tyson Timbs and his 2012 Land

Rover LR2. Respondent is the State of Indiana. Additional plaintiffs before the trial court were the J.E.A.N.

Team Drug Task Force, the Marion Police Department,

and the Grant County Sheriff ’s Department.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

TABLE OF AUTHORITIES .................................

v

INTRODUCTION ................................................

1

OPINIONS BELOW.............................................

4

JURISDICTION ...................................................

4

CONSTITUTIONAL PROVISIONS INVOLVED .....

4

STATEMENT .......................................................

5

REASONS FOR GRANTING THE PETITION .....

10

I.

The Indiana Supreme Court’s decision

deepens an existing conflict over whether

the Excessive Fines Clause applies to the

States ......................................................... 11

A. Two Circuits and at least 14 state high

courts apply the Excessive Fines

Clause to the States ............................ 13

B. Indiana joins Montana, Mississippi,

and the Michigan Court of Appeals in

holding that the Excessive Fines

Clause does not apply to the States .... 19

II.

The Indiana Supreme Court’s decision

conflicts with this Court’s precedent ......... 21

III.

The question presented raises issues of

national importance that warrant this

Court’s review ............................................ 27

iv

TABLE OF CONTENTS – Continued

Page

A. The Excessive Fines Clause is a key

protection against punitive economic

sanctions by States and municipalities ....................................................... 27

B. National uniformity is critical ............ 33

C. This case is a good vehicle for deciding

the question presented ........................ 36

CONCLUSION..................................................... 38

APPENDIX

Opinion of the Indiana Supreme Court (Nov. 2,

2017) ................................................................. App. 1

Opinion of the Court of Appeals of Indiana (Oct.

20, 2016) ......................................................... App. 13

Order of the Indiana Superior Court, Grant

County, Court 1 (Aug. 28, 2015) ..................... App. 27

Order of the Indiana Superior Court, Grant

County, Court 1 (Oct. 21, 2015)...................... App. 31

Order of the Indiana Superior Court, Grant

County, Court 1 (Nov. 9, 2017) ....................... App. 32

Order of the Indiana Superior Court, Grant

County, Court 1 (Nov. 15, 2017) ..................... App. 33

v

TABLE OF AUTHORITIES

Page

CASES

$100 v. State, 822 N.E.2d 1001 (Ind. Ct. App.

2005) ..........................................................................8

Agresta v. City of Maitland, 159 So. 3d 876 (Fla.

Dist. Ct. App. 2015) .................................................18

Atkins v. Virginia, 536 U.S. 304 (2002).......................23

Attorney-Gen. v. One Green 1993 Four Door

Chrysler, 217 A.D.2d 342 (N.Y. App. Div. 1996) ........18

Austin v. United States, 509 U.S. 602

(1993) ....................................................... 2, 22, 23, 37

Baze v. Rees, 553 U.S. 35 (2008) ..................... 10, 12, 22

Bond v. United States, 564 U.S. 211 (2011) ................34

Booth v. Maryland, 482 U.S. 496 (1987), overruled on others grounds, Payne v. Tennessee,

501 U.S. 808 (1991) ........................................... 10, 22

Bowman v. State, 81 N.E.3d 1127 (Ind. Ct. App.

2017), pet. for transfer pending ...............................35

Broussard v. Par. of Orleans, 318 F.3d 644 (5th

Cir. 2003) .................................................................14

Browning-Ferris Indus. of Vt. v. Kelco Disposal,

Inc., 492 U.S. 257 (1989).................................. passim

Claflin v. Houseman, 93 U.S. 130 (1876) ....................26

Commonwealth v. 1997 Chevrolet, 160 A.3d 153

(Pa. 2017) .................................................................17

Commonwealth v. Fint, 940 S.W.2d 896 (Ky.

1997) ........................................................................16

vi

TABLE OF AUTHORITIES – Continued

Page

Cooper Indus. v. Leatherman Tool Grp., 532 U.S.

424 (2001) ........................................................ passim

Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d

221 (5th Cir.), cert. denied, 137 S. Ct. 305

(2016) .......................................................................14

Dami Hosp., LLC v. Indus. Claim Appeals Office,

No. 16CA0249, 2017 WL 710497 (Colo. App.

Feb. 23, 2017), cert. granted in part sub nom.

Colo. Dep’t of Labor & Emp. v. Dami Hosp.,

LLC, No. 17SC200, 2017 WL 3977989 (Colo.

Sept. 11, 2017) .........................................................18

Davanne Realty v. Edison Twp., 972 A.2d 1164

(N.J. Super. Ct. App. Div. 2009), aff ’d, 990 A.2d

639 (N.J. 2010) .........................................................18

Dean v. State, 736 S.E.2d 40 (W. Va. 2012).................18

Disc. Inn, Inc. v. City of Chicago, 803 F.3d 317

(7th Cir. 2015), cert. denied, 136 S. Ct. 1209

(2016) .......................................................................14

Ex parte Kelley, 766 So. 2d 837 (Ala. 1999) ...............15

Galloway v. City of New Albany, 735 So. 2d 407

(Miss. 1999) .............................................................20

Garcia v. Wyoming, 587 F. App’x 464 (10th Cir.

2014) ........................................................................14

Hall v. Florida, 134 S. Ct. 1986 (2014)....... 2, 10, 12, 22

Harmelin v. Michigan, 501 U.S. 957 (1991) ... 10, 22, 33

Hopkins v. Okla. Pub. Emps. Ret. Sys., 150 F.3d

1155 (10th Cir. 1998) ...............................................14

vii

TABLE OF AUTHORITIES – Continued

Page

Howlett v. Rose, 496 U.S. 356 (1990) .......... 1, 21, 26, 38

Idaho State Police ex rel. Russell v. Real Prop.,

156 P.3d 561 (Idaho 2007).......................................15

In re 1982 Honda, 681 A.2d 1035 (Del. 1996) ............15

In re Forfeiture of $25,505, 560 N.W.2d 341

(Mich. Ct. App. 1996) ...............................................20

In re Forfeiture of 5118 Indian Garden Rd., 654

N.W.2d 646 (Mich. Ct. App. 2002) ...........................20

In re McKinney, 948 N.E.2d 1154 (Ind. 2011)............31

In re Prop. of Flores, 711 N.W.2d 733 (Iowa Ct.

App. 2006) ................................................................18

Ingraham v. Wright, 430 U.S. 651 (1977) .....................2

Kennedy v. Louisiana, 554 U.S. 407

(2008) ..................................................... 10, 12, 22, 36

Knapp v. Schweitzer, 357 U.S. 371 (1958), overruled by Murphy v. Waterfront Comm’n, 378

U.S. 52 (1964) ..........................................................19

Knox Cty. Council v. Sievers, 895 N.E.2d 1263

(Ind. Ct. App. 2008) ........................................... 31, 32

Leonard v. Texas, 137 S. Ct. 847 (2017)............ 3, 29, 30

Levingston v. Washoe Cty., 916 P.2d 163 (Nev.

1996), opinion modified on reh’g on other

grounds, 956 P.2d 84 (Nev. 1998) ............................17

McDonald v. City of Chicago, 561 U.S. 742 (2010) .... passim

viii

TABLE OF AUTHORITIES – Continued

Page

Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S.

211 (1916) ................................................................38

One (1) Charter Arms, Bulldog 44 Special v. State

ex rel. Moore, 721 So. 2d 620 (Miss. 1998) .............. 19

One (1) 1979 Ford 15V v. State ex rel. Miss.

Bureau of Narcotics, 721 So. 2d 631 (Miss.

1998) .................................................................. 19, 20

One 2011 Chevrolet Silverado 1500 v. Panola Cty.

Narcotics Task Force, 169 So. 3d 967 (Miss. Ct.

App. 2014) .................................................................. 20

One Car v. State, 122 S.W.3d 422 (Tex. App.

2003) ........................................................................18

People ex rel. Lockyer v. R.J. Reynolds Tobacco

Co., 124 P.3d 408 (Cal. 2005), as modified (Jan.

18, 2006) ..................................................................15

People ex rel. Waller v. 1989 Ford F350 Truck,

642 N.E.2d 460 (Ill. 1994) .......................................16

People v. Antolovich, 525 N.W.2d 513 (Mich. Ct.

App. 1994) ................................................................20

People v. Castillo, No. 243968, 2004 WL 243417

(Mich. Ct. App. Feb. 10, 2004) .................................20

Pervear v. Commonwealth, 72 U.S. 475 (1866) ...........19

Plessy v. Ferguson, 163 U.S. 537 (1896) ......................34

Pub. Emp. Ret. Admin. Comm’n v. Bettencourt,

47 N.E.3d 667 (Mass. 2016) ....................................16

Qwest Corp. v. Minnesota Pub. Util. Comm’n,

427 F.3d 1061 (8th Cir. 2005) ..................................13

ix

TABLE OF AUTHORITIES – Continued

Page

Reyes v. N. Tex. Tollway Auth., 830 F. Supp. 2d

194 (N.D. Tex. 2011) .......................................... 12, 13

Robertson v. United States ex rel. Watson, 560

U.S. 272 (2010) ........................................................27

Roper v. Simmons, 543 U.S. 551 (2005) ......................10

Sargent v. State, 27 N.E.3d 729 (Ind. 2015) ......... 32, 33

Simic v. City of Chicago, 851 F.3d 734 (7th Cir.

2017) ........................................................................14

State v. 2003 Chevrolet Pickup, 202 P.3d 782

(Mont. 2009) ............................................................19

State v. A House, 886 P.2d 534 (Utah 1994) ...............17

State v. Bergquist, 641 N.W.2d 179 (Wis. Ct. App.

2002) ........................................................................18

State v. Hill, 635 N.E.2d 1248 (Ohio 1994) ................17

State v. Leyva, 985 P.2d 498 (Ariz. Ct. App. 1998) ...... 18

State v. Real Prop., 994 P.2d 1254 (Utah 2000) ..... 17, 18

State v. Rewitzer, 617 N.W.2d 407 (Minn. 2000) ........16

Tellevik v. Real Prop., 921 P.2d 1088 (Wash. Ct.

App. 1996) ................................................................18

Thompson v. Oklahoma, 487 U.S. 815 (1988) ..... 2, 10, 22

Thorp v. State, 450 S.E.2d 416, 417 (Ga. 1994),

abrogated on other grounds by Howell v. State,

656 S.E.2d 511 (Ga. 2008) .......................................15

Trop v. Dulles, 356 U.S. 86 (1958)...............................23

United States v. Bajakajian, 524 U.S. 321 (1998) ......... 8

x

TABLE OF AUTHORITIES – Continued

Page

Vanderbilt Mortg. & Fin. v. Cole, 740 S.E.2d 562

(W. Va. 2013) ............................................................18

Vanderbilt Mortg. & Fin. v. Flores, 692 F.3d 358

(5th Cir. 2012)..........................................................14

Washington v. Glucksberg, 521 U.S. 702 (1997) .........22

Wilson v. Comm’r of Revenue, 656 N.W.2d 547

(Minn. 2003) ............................................................16

Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000) .......13

Zelman v. Simmons-Harris, 536 U.S. 639 (2002).......34

CONSTITUTIONAL PROVISIONS

U.S. Const. art. VI, cl. 2 ...............................................26

U.S. Const. amend. VIII ...................................... passim

U.S. Const. amend. XIV, § 1 .............................. 4, 12, 23

Ind. Const. art. I, § 16 ...................................................9

CODES, STATUTES AND RULES

28 U.S.C. § 1257(a) ........................................................4

Ind. Code § 34-24-1-8 ..................................................30

Ind. Code § 35-43-4-2(a) ...............................................6

Ind. Code § 35-48-4-2(a)(1)(C) ......................................6

Ind. Code §§ 35-50-2-4 to -7 ..........................................8

xi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Beth A. Colgan, The Excessive Fines Clause:

Challenging the Modern Debtors’ Prison, 65

UCLA L. Rev. (forthcoming 2018) ...........................28

Beth A. Colgan, “Fines, Fees, and Forfeitures” in

Reforming Criminal Justice – Volume 4: Punishment, Incarceration, and Release (Erik

Luna ed. 2017) .........................................................28

David P. Smith, Prosecution and Defense of Forfeiture Cases (LexisNexis 2017) ..............................30

Findings and Report on Civil Drug Forfeitures

in Division 2, Including a Limited Number of

Cases in the Other Four Divisions of the Delaware Circuit Court (Ind. Cir. Ct., Delaware

Cty. Aug. 18, 2008) ...................................................31

George F. Will, A Missouri town demands substantive due process, The Wash. Post (Dec. 11,

2015) ........................................................................29

Heather Gillers et al., Cashing in on crime: Indiana law allows prosecutors to farm out forfeiture cases to private lawyers – who get a cut

of the money, The Indianapolis Star, Nov. 14,

2010 .........................................................................31

Institute for Justice, Dick M. Carpenter II et al.,

Policing for Profit: The Abuse of Civil Asset

Forfeiture (2d ed. Nov. 2015) ...................................29

xii

TABLE OF AUTHORITIES – Continued

Page

Jennifer S. Mann, Lawsuit filed against

Pagedale for ticketing high grass and other

code violations, St. Louis Post-Dispatch (Nov.

4, 2015) ....................................................................29

Joseph T. Hallinan, Police can take crime cash

but can’t dish it out, The Indianapolis Star,

Feb. 2, 1986 ..............................................................30

Laurence Claus, The Antidiscrimination Eighth

Amendment, 28 Harv. J.L. & Pub. Pol’y 119

(2004) .......................................................................24

Office of the Att’y Gen., Order No. 3946-2017

(Federal Forfeiture of Property Seized by

State and Local Law Enforcement Agencies)

(July 19, 2017) .........................................................35

Office of the Inspector Gen., U.S. Dep’t of Justice, Audit of Henry County Sheriff ’s Office’s

Equitable Sharing Program Activities, New

Castle, Indiana (Feb. 2017) .....................................32

Paris Lewbel, Take a look inside Indy’s FedEx

hub, the second-largest in the U.S., Indy Channel (Dec. 15, 2017) ...................................................35

Pls.’ Mot. Summ. J., State v. Jaynes, No. 49D011111-MI-043642, 2012 WL 12974140 (Ind. Super. Ct., Marion Cty. filed May 23, 2012) ................32

xiii

TABLE OF AUTHORITIES – Continued

Page

Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When

the Fourteenth Amendment Was Ratified in

1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Tex. L. Rev. 7

(2008) .......................................................................25

U.S. Dep’t of Justice, Investigation of the Ferguson Police Department (Mar. 4, 2015) .....................28

1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large

440 (1689) ................................................................24

4 William Blackstone, Commentaries ........................24

1

INTRODUCTION

This case presents an unsettled question of national importance: whether the Excessive Fines Clause

of the Eighth Amendment is incorporated against the

States. Although the majority of state and federal

courts to consider this question have applied the

Clause to the States, a growing minority of state courts

have chosen not to. The Indiana Supreme Court in this

case aligned itself with that minority view, relying on

a sentence of “dicta” from McDonald v. City of Chicago,

561 U.S. 742 (2010), while acknowledging an open

break with other jurisdictions. See App. 8-9. Unless

and until this Court “authoritatively” holds that the

Excessive Fines Clause is incorporated against the

States, the Indiana Supreme Court announced that it

would “decline to find or assume incorporation”—or

even engage with the incorporation analysis. App. 8.

The Indiana Supreme Court’s decision deepens a

growing divide on the question presented. Although

two Circuits and at least 14 state high courts apply the

Excessive Fines Clause to the States, a minority of

courts—in Montana, Mississippi, Michigan, and now

Indiana—believe that the Clause does not apply. And

despite their “coordinate responsibility” to give effect

to federally protected rights, Howlett v. Rose, 496 U.S.

356, 367 (1990), each of these jurisdictions has written

off the Excessive Fines Clause without evaluating this

Court’s incorporation precedent. As a result, Petitioner

Tyson Timbs—along with the 6.6 million residents of

Indiana and more than 13 million residents of the

three other minority jurisdictions—enjoys Eighth

2

Amendment protection against fines and forfeitures

imposed by the federal government but not against

those imposed by state and local authorities. See generally Austin v. United States, 509 U.S. 602, 621-22

(1993) (holding that the Excessive Fines Clause applies to civil forfeitures imposed by the federal government).

Beyond exacerbating a split of authority, the Indiana Supreme Court’s decision also breaks with this

Court’s precedent. The Eighth Amendment embodies

three “parallel limitations” on the government’s power

to punish: the Cruel and Unusual Punishments

Clause, the Excessive Bail Clause, and the Excessive

Fines Clause. Browning-Ferris Indus. of Vt. v. Kelco

Disposal, Inc., 492 U.S. 257, 263 (1989) (quoting Ingraham v. Wright, 430 U.S. 651, 664 (1977)). Together,

these Clauses operate to secure a single, fundamental

right to be free from excessive punishments. For that

reason, this Court has repeatedly observed that the

three Clauses are incorporated in equal measure

against the States. See, e.g., Hall v. Florida, 134 S. Ct.

1986, 1992 (2014); Cooper Indus. v. Leatherman Tool

Grp., 532 U.S. 424, 433-34 (2001); Thompson v. Oklahoma, 487 U.S. 815, 819 n.1 (1988) (plurality opinion).

And by any measure, the Excessive Fines Clause is

deeply rooted in our nation’s legal tradition, making it

an obvious candidate for incorporation.

Moreover, the question presented is especially

pressing today. As disagreement among courts has

deepened, fines and forfeitures have exploded at the

state and local levels. Civil forfeiture in particular—

3

the basis for this case—is now “widespread and highly

profitable,” causing “egregious and well-chronicled

abuses.” Leonard v. Texas, 137 S. Ct. 847, 848 (2017)

(Thomas, J., statement respecting denial of certiorari).

State and local governments “have strong incentives

to pursue forfeiture” in part because “many States

permit 100 percent of forfeiture proceeds to flow directly to law enforcement.” Id. Additionally, prosecutors enjoy procedural advantages in civil-forfeiture

cases—for example, no criminal conviction is needed,

the standard of proof is lower than in criminal cases,

and property owners have no right to appointed counsel. And in Indiana, prosecutors sometimes have a personal financial stake in civil forfeiture because in

many cases—including this one—the government

farms out forfeiture prosecutions to private lawyers on

a contingency-fee basis. The impulse to use economic

sanctions “for raising revenue in unfair ways” could

hardly be stronger. See Browning-Ferris Indus., 492

U.S. at 272.

This Court has recognized that the Excessive

Fines Clause is an essential check on the government’s

tendency to “use[ ] the civil courts to extract large payments or forfeitures for the purpose of raising revenue.” Id. at 275. But that protection carries little

weight if state courts can “decline” to apply it, as the

Indiana Supreme Court did here. See App. 9. Only this

Court can resolve the inherently national question

whether the Excessive Fines Clause is incorporated

4

against all 50 States. Because this case is an ideal

vehicle for doing so, the Court should grant certiorari.

------------------------------------------------------------------

OPINIONS BELOW

The opinion of the Indiana Supreme Court is reported at 84 N.E.3d 1179. See App. 1-12. The opinion of

the Indiana Court of Appeals is reported at 62 N.E.3d

472. See App. 13-26. The opinions of the Grant County

Superior Court are unpublished, but included in the

Appendix at App. 27-34.

------------------------------------------------------------------

JURISDICTION

The Indiana Supreme Court entered judgment on

November 2, 2017. See App. 1. Petitioners request a

writ of certiorari pursuant to 28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the U.S. Constitution

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

Section 1 of the Fourteenth Amendment to the U.S.

Constitution provides, in relevant part: “No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty,

5

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

------------------------------------------------------------------

STATEMENT

1. After his father died, in the winter of 2012, Petitioner Tyson Timbs (“Petitioner”) received around

$73,000 in life-insurance proceeds. He used $41,558.30

to buy a car—the Land Rover LR2 at issue in this case.

At the time, Petitioner had recently moved to Marion, Indiana, to live with an aunt while he worked on

rebuilding his life. Back home in St. Mary’s, Ohio, he

had become addicted to hydrocodone—an opioid medication prescribed to him for a work-related injury.

When he could no longer find pills on the street, he began using heroin.

For a short time in Marion, Petitioner overcame

his addiction. But following his father’s death, he began using heroin again. With a new Land Rover and

more than $31,000 left to spend, Petitioner began driving the vehicle to Richmond, Indiana, and Ohio—sometimes on a daily basis—to buy heroin for his personal

use.

His money soon ran out, and Petitioner began

looking for new ways to fund his addiction. With the

help of a confidential informant, he arranged several

drug transactions with undercover officers. On the

first such occasion, Petitioner drove across Marion in

6

the Land Rover and sold officers two grams of heroin

for $225. Hrg. Tr. 26:25-27:02 (July 15, 2015). A few

days later, he walked from his aunt’s house to a nearby

gas station, where he sold officers another two grams

for $160. Hrg. Tr. 29:16-29:20. While driving to a third

transaction, Petitioner was pulled over and arrested.

No drugs were found in the vehicle (apart from a prescription pill in the pocket of Petitioner’s traveling

companion). The Land Rover was seized.

The State of Indiana charged Petitioner with two

counts of dealing in a Schedule I controlled substance

(a class B felony, see Ind. Code § 35-48-4-2(a)(1)(C)) and

one count of felony conspiracy to commit theft (a class

D felony, see id. § 35-43-4-2(a)).1

Petitioner pleaded guilty to one count of dealing

and to the count of conspiracy to commit theft. The

trial court sentenced him to six years, with the first

year to be served in home detention and the remaining

five years on probation. Petitioner agreed to attend an

addiction-treatment program under court supervision.

He also agreed to pay police costs of $385, an interdiction fee of $200, court costs of $168, a bond fee of $50,

1

In a post-arrest interview, detectives asked why Petitioner

and his companion had no heroin in the Land Rover at the time

of their arrest, given they were traveling to a meeting at which

undercover officers expected to buy heroin. Petitioner told them,

“we thought about maybe just pulling up and, if he would’ve gave

me the money, just driving away . . . I’m not really sure what we

were going to do.” State’s Trial Ex. 1 at 19:23-20:00, 21:03-21:25.

These statements appear to have been the basis for Petitioner’s

theft charge.

7

and a $400 fee for undergoing a drug-and-alcohol assessment with the probation department.

2. Several months after Petitioner’s arrest, a private law firm filed a case to forfeit his vehicle on behalf

of the State. The complaint “referred only to May 31,

2013”—the date on which Petitioner was arrested

while driving to the unconsummated third transaction

with officers. See App. 21.

Following Petitioner’s conviction, the trial court

held an evidentiary hearing on the State’s forfeiture

request. The court found that Petitioner purchased

the Land Rover legally using life-insurance proceeds

but used the vehicle to “transport . . . heroin back to

Marion.” App. 28 ¶¶ 2-3. Based on the record, the court

determined that forfeiture would be “grossly disproportional to the gravity of [Petitioner’s] offense” and thus

unconstitutional under the Eighth Amendment’s Excessive Fines Clause, App. 29-30 ¶¶ 6-9. “While the

negative impact on our society of trafficking in illegal

drugs is substantial,” the court acknowledged, “a forfeiture of approximately four (4) times the maximum

monetary fine is disproportional to [Petitioner’s] illegal

conduct.” App. 30 ¶ 9.

3. A divided panel of the Indiana Court of Appeals affirmed. App. 13-26. The court concluded that

“[t]he United States Supreme Court has yet to hold

that the Excessive Fines Clause is applicable to the

States.” App. 17-18 n.4 (citing Browning-Ferris Indus.

of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 276 (1989)).

Based on its own precedent, however, the court held

8

that the Clause applies in state forfeiture proceedings.

App. 17-18 n.4 (citing $100 v. State, 822 N.E.2d 1001,

1011 (Ind. Ct. App. 2005)).

After conducting the proportionality assessment

required under this Court’s excessive-fines precedent,

the court of appeals affirmed that forfeiture of Petitioner’s vehicle would be unconstitutionally excessive.

App. 20 (citing United States v. Bajakajian, 524 U.S.

321, 334 (1998)). The court compared the value of the

Land Rover (about $40,000) to the maximum criminal

penalty that could be imposed for Petitioner’s offense

($10,000). App. 20-21.2 The court considered the “financial burdens [that] had already been imposed on [Petitioner] when he pleaded guilty.” App. 21. It further

concluded that the State’s request for forfeiture was

based on a single, unconsummated sale of heroin on

May 31, 2013. App. 21. “If the State wished to seek forfeiture of the Land Rover based on [Petitioner’s] other

criminal acts,” the court reasoned, “it should have done

so more clearly in its forfeiture complaint.” App. 21-22.

Regardless, the court observed, “the only evidence before the trial court was that [Petitioner] sold heroin

twice, both times as a result of controlled buys.” See

App. 22 (noting that “[t]he remaining times he transported heroin, it was apparently for his own use”).

Based on this record, the court affirmed that

2

Indiana sets a uniform $10,000 maximum fine for every

class of felony. See Ind. Code §§ 35-50-2-4 to -7.

9

“[f ]orfeiture of the Land Rover . . . was grossly disproportionate to the gravity of [Petitioner’s] offense.” App.

24.3

4. The Indiana Supreme Court granted review

and unanimously reversed. App. 1-12. Surveying decisions that have addressed the incorporation of the Excessive Fines Clause, App. 5-7, the court concluded that

this Court “has never held that the States are subject

to the Excessive Fines Clause,” App. 5. Given the “lack

of clear direction from the Supreme Court,” the court

“decline[d] to find or assume incorporation.” App. 8. Because this Court has not “decide[d] the issue authoritatively,” the Indiana Supreme Court believed that no

incorporation analysis was warranted. App. 8. Citing

Indiana’s status as “a sovereign state within our federal system,” the court held that it would not “impose

federal obligations on the State that the federal government itself has not mandated.” App. 9.

The Indiana Supreme Court acknowledged that

its holding broke from the weight of authority. See App.

8. The court further acknowledged that “our colleagues

on the Court of Appeals and the trial court may be correct in foretelling where the Supreme Court will one

3

The dissenting court-of-appeals judge agreed that “the Excessive Fines Clause of the Eighth Amendment may come into

play in a forfeiture case,” App. 25, but disagreed that forfeiture of

Petitioner’s Land Rover would be excessive, App. 26. Like the trial

court, the court-of-appeals majority addressed the Excessive

Fines Clause alone, noting that Petitioner did not raise the separate protection against excessive fines under the Indiana Constitution. See App. 18 n.4 (citing Ind. Const. art. I, § 16).

10

day lead on whether to apply the Clause to the States.”

App. 9-10. Nonetheless, the court declined to apply the

Excessive Fines Clause absent further instruction

from this Court.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

Four Terms ago, this Court remarked—correctly—

that all three Clauses of the Eighth Amendment apply

to the States: “The Eighth Amendment provides that

‘[e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted,’ ” and “[t]he Fourteenth Amendment applies

those restrictions to the States.” Hall v. Florida, 134

S. Ct. 1986, 1992 (2014). The Court has reaffirmed the

same principles on a half-dozen other occasions: in

2008, Kennedy v. Louisiana, 554 U.S. 407, 419; Baze v.

Rees, 553 U.S. 35, 47 (plurality opinion); in 2005, Roper

v. Simmons, 543 U.S. 551, 560; in 1991, Harmelin v.

Michigan, 501 U.S. 957, 962 (opinion of Scalia, J.); in

1988, Thompson v. Oklahoma, 487 U.S. 815, 819 n.1

(plurality opinion); and in 1987, Booth v. Maryland,

482 U.S. 496, 501 n.5, overruled on other grounds,

Payne v. Tennessee, 501 U.S. 808 (1991). Put simply,

“the Fourteenth Amendment . . . makes the Eighth

Amendment’s prohibition against excessive fines and

cruel and unusual punishments applicable to the

States.” Cooper Indus. v. Leatherman Tool Grp., 532

U.S. 424, 433-34 (2001).

11

The Indiana Supreme Court nonetheless concluded that this Court has been insufficiently “definitive” on the incorporation of the Excessive Fines

Clause. App. 9. For that reason, it “decline[d] to find or

assume incorporation until the Supreme Court decides

the issue authoritatively.” App. 8. The court reached

this conclusion based on what it labeled “dicta” in

McDonald v. City of Chicago—in which this Court addressed incorporation of the Second Amendment, not

the Eighth. See App. 8-9. Indiana thus aligned itself

with a growing minority of jurisdictions that decline to

apply the Excessive Fines Clause when state and local

authorities impose economic sanctions.

Given the surge in punitive fines and forfeitures

at the state and local levels, the issue of the Clause’s

incorporation is more pressing now than ever. Only

this Court can answer the inherently national question

of incorporation, and this case presents the ideal vehicle for resolving that question.

I.

The Indiana Supreme Court’s decision

deepens an existing conflict over whether

the Excessive Fines Clause applies to the

States.

The Indiana Supreme Court’s decision turned on

what it called a “lack of clear direction” from this

Court. App. 8. While acknowledging that other courts

“have either applied the Excessive Fines Clause to

challenged state action or assumed without deciding

that the Clause applies,” the court elected to “await

12

guidance” from this Court. App. 8. This decision deepens an existing split over whether state courts are required to enforce the federal protection against

excessive fines under the Eighth and Fourteenth

Amendments.

In large part, this growing divide stems from what

state courts—and lower federal courts—have perceived as mixed signals from this Court. In 1989, for

example, this Court suggested that it had yet to “decide

whether the Eighth Amendment’s prohibition on excessive fines applies to the several States through the

Fourteenth Amendment.” Browning-Ferris Indus. of

Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 276 n.22.

Twelve years later, however, the Court remarked that

“the Due Process Clause of the Fourteenth Amendment . . . makes the Eighth Amendment’s prohibition

against excessive fines and cruel and unusual punishments applicable to the States.” Cooper Indus., 532 U.S.

at 433-34. But in 2010, the Court noted that “[w]e

never have decided whether . . . the Eighth Amendment’s prohibition of excessive fines applies to the

States through the Due Process Clause.” McDonald v.

City of Chicago, 561 U.S. 742, 765 n.13. At other times,

the Court has observed that all three Clauses of the

Eighth Amendment apply to the States equally. See,

e.g., Hall, 134 S. Ct. at 1992; Kennedy, 554 U.S. at 419;

Baze, 553 U.S. at 47 (plurality opinion).

These conflicting statements have left state and

federal courts split, leading to “a surprising amount of

confusion as to whether the Excessive Fines Clause

has been incorporated against the states.” Reyes v. N.

13

Tex. Tollway Auth., 830 F. Supp. 2d 194, 206 (N.D. Tex.

2011). The majority of courts that have addressed the

issue have applied the Clause to the States (Section A,

infra). A lopsided minority—now including Indiana—

have declined to do so (Section B, infra).

A. Two Circuits and at least 14 state high

courts apply the Excessive Fines Clause

to the States.

The Eighth and Ninth Circuits have applied the

Excessive Fines Clause to the States. So, too, have the

high courts of Alabama, California, Delaware, Georgia,

Idaho, Illinois, Kentucky, Massachusetts, Minnesota,

Nevada, Ohio, Pennsylvania, Utah, and West Virginia.

These courts view the matter as beyond serious

dispute. In Qwest Corp. v. Minnesota Public Utilities

Commission, 427 F.3d 1061 (8th Cir. 2005), for example, the Eighth Circuit reviewed a local exchange carrier’s challenge to a state agency’s $25.95-million

penalty. Drawing on Cooper Industries, the court held

that “[t]he Eighth Amendment’s prohibition of excessive fines applies to the states through the Due Process

Clause of the Fourteenth Amendment.” Id. at 1069 (citing Cooper Indus., 532 U.S. at 433-34). Likewise in

Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000), the

Ninth Circuit held that a Washington statute authorizing deduction of inmate funds “is punitive and subject to Eighth Amendment scrutiny” under the

Excessive Fines Clause. Id. at 915. And two other

14

Circuits—the Fifth and the Seventh—have frequently

remarked on the “open question” of incorporation before forging ahead on the assumption that the Excessive Fines Clause applies to the States. Simic v. City of

Chicago, 851 F.3d 734, 739 (7th Cir. 2017); see also

Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d 221,

234 (5th Cir.), cert. denied, 137 S. Ct. 305 (2016); Disc.

Inn, Inc. v. City of Chicago, 803 F.3d 317, 319-20 (7th

Cir. 2015), cert. denied, 136 S. Ct. 1209 (2016); Vanderbilt Mortg. & Fin. v. Flores, 692 F.3d 358, 374 & n.14

(5th Cir. 2012); Broussard v. Par. of Orleans, 318 F.3d

644, 652 (5th Cir. 2003).4

At the state-court level—where judicial review of

state and local fines normally occurs—at least 14 state

courts of last resort have applied the Excessive Fines

Clause to the States:

Alabama. The Alabama Supreme Court holds

that “[t]he forfeiture provisions of our Code are subject

to the Excessive Fines Clauses of the Alabama Constitution, Art. I, § 15, and the Eighth Amendment to the

4

The Tenth Circuit appears to have taken both sides of the

issue. In 1998, the court analyzed the forfeiture of a state pension

under the Excessive Fines Clause, rejecting the constitutional

claim without commenting on incorporation. See Hopkins v. Okla.

Pub. Emps. Ret. Sys., 150 F.3d 1155, 1162-63. But, in a recent unpublished decision, the court affirmed the dismissal of a pro se

appeal in part because “the Excessive Fines Clause has never

been incorporated by the Fourteenth Amendment and applied to

the states.” Garcia v. Wyoming, 587 F. App’x 464, 469 (10th Cir.

2014).

15

United States Constitution.” Ex parte Kelley, 766 So.

2d 837, 840 (Ala. 1999).

California. The California Supreme Court likewise recognizes that “[t]he Due Process Clause of the

Fourteenth Amendment to the Federal Constitution

. . . makes the Eighth Amendment’s prohibition

against excessive fines and cruel and unusual punishments applicable to the States.” People ex rel. Lockyer

v. R.J. Reynolds Tobacco Co., 124 P.3d 408, 420 (Cal.

2005), as modified (Jan. 18, 2006) (quoting Cooper Indus., 532 U.S. at 433-34).

Delaware. Answering certified questions, the

Delaware Supreme Court has held that “it is clear that

civil forfeitures imposed pursuant to Delaware law are

subject to the constraints of the Excessive Fines

Clause of the Eighth Amendment.” In re 1982 Honda,

681 A.2d 1035, 1039 (Del. 1996).

Georgia. Answering certified questions, the Georgia Supreme Court has held that “[t]he prohibition

against excessive fines of the Eighth Amendment does

apply to civil in rem forfeitures under [the State’s civilforfeiture law].” Thorp v. State, 450 S.E.2d 416, 417

(Ga. 1994), abrogated on other grounds by Howell v.

State, 656 S.E.2d 511 (Ga. 2008).

Idaho. The Idaho Supreme Court “has decided

that the Eighth Amendment’s prohibition on ‘excessive

fines’ applies to civil in rem forfeitures brought under

[the State’s civil-forfeiture law].” Idaho State Police ex

rel. Russell v. Real Prop., 156 P.3d 561, 564 (Idaho

2007).

16

Illinois. The Illinois Supreme Court holds that

the Excessive Fines Clause applies to state-law forfeitures. People ex rel. Waller v. 1989 Ford F350 Truck, 642

N.E.2d 460, 466 (Ill. 1994); see also id. (“[W]e remand

with instructions for the circuit court to expressly consider and determine the excessive fine issue.”).

Kentucky. The Kentucky Supreme Court has

recognized that “a punitive forfeiture is subject to scrutiny to determine if it violates the ‘excessive fines’

clauses of the Eighth Amendment to the United States

Constitution and section 17 of our Constitution, which

contain identical language.” Commonwealth v. Fint,

940 S.W.2d 896, 897-98 (Ky. 1997) (internal citation

omitted).

Massachusetts. The Supreme Judicial Court of

Massachusetts holds that “[t]he due process clause of

the Fourteenth Amendment to the United States Constitution ‘makes the Eighth Amendment’s prohibition

against excessive fines and cruel and unusual punishments applicable to the States.’ ” Pub. Emp. Ret. Admin. Comm’n v. Bettencourt, 47 N.E.3d 667, 672 n.7

(Mass. 2016) (quoting Cooper Indus., 532 U.S. at 43334).

Minnesota. The Minnesota Supreme Court has

invalidated fines under “the Excessive Fines Clauses

of the United States and Minnesota Constitutions”

alike. State v. Rewitzer, 617 N.W.2d 407, 415 (Minn.

2000); see also Wilson v. Comm’r of Revenue, 656

N.W.2d 547, 557 (Minn. 2003).

17

Nevada. The Nevada Supreme Court holds that

the Excessive Fines Clause places limits on state-law

forfeitures. Levingston v. Washoe Cty., 916 P.2d 163,

169 (Nev. 1996) (“While we conclude that excessive

fines analysis applies to civil forfeiture actions, insufficient evidence was presented to the district court to

determine whether [the government’s] forfeiture of the

10th Street home violated the Excessive Fines

Clause.”), opinion modified on reh’g on other grounds,

956 P.2d 84 (Nev. 1998).

Ohio. The Ohio Supreme Court “hold[s] that

forfeiture of property, pursuant to [the State’s civilforfeiture law], is a form of punishment for a specified

offense and, therefore, is a ‘fine’ for purposes of Section

9, Article I of the Ohio Constitution and the Eighth

Amendment to the United States Constitution.” State

v. Hill, 635 N.E.2d 1248, 1256 (Ohio 1994).

Pennsylvania. The Pennsylvania Supreme Court

holds that “[t]he Eighth Amendment, and, specifically,

the Excessive Fines Clause, is made applicable to the

states through the Fourteenth Amendment to the

United States Constitution.” Commonwealth v. 1997

Chevrolet, 160 A.3d 153, 162 n.7 (Pa. 2017) (citing

Cooper Indus., 532 U.S. at 433-34).

Utah. The Utah Supreme Court has recognized

that “a forfeiture pursuant to [the State’s civilforfeiture law] is . . . subject to the limitations of the

Eighth Amendment’s Excessive Fines Clause.” State v.

A House, 886 P.2d 534, 541 (Utah 1994); see also State

v. Real Prop., 994 P.2d 1254, 1256 (Utah 2000)

18

(invalidating forfeiture as excessive fine “on the basis

of the United States Constitution alone”).

West Virginia. The Supreme Court of Appeals of

West Virginia holds that “[t]he Excessive Fines Clause

of the U.S. Constitution is applicable to the states

through the Fourteenth Amendment.” Vanderbilt

Mortg. & Fin. v. Cole, 740 S.E.2d 562, 570 n.10 (W. Va.

2013) (citing Cooper Indus., 532 U.S. at 433-34); see

also Dean v. State, 736 S.E.2d 40, 42 syl. 6 (W. Va.

2012).5

5

Intermediate appellate courts in at least nine other jurisdictions have applied the Excessive Fines Clause to the States.

Dami Hosp., LLC v. Indus. Claim Appeals Office, No. 16CA0249,

2017 WL 710497, at *1 (Colo. App. Feb. 23, 2017), cert. granted in

part sub nom. Colo. Dep’t of Labor & Emp. v. Dami Hosp., LLC,

No. 17SC200, 2017 WL 3977989 (Colo. Sept. 11, 2017) (agreeing

to decide, among other questions, “[w]hether the protections of the

Excessive Fines Clause of the Eighth Amendment apply to corporations”); Agresta v. City of Maitland, 159 So. 3d 876, 878 (Fla.

Dist. Ct. App. 2015); Davanne Realty v. Edison Twp., 972 A.2d

1164, 1167 (N.J. Super. Ct. App. Div. 2009), aff ’d, 990 A.2d 639

(N.J. 2010); In re Prop. of Flores, 711 N.W.2d 733 (table), at *4

(Iowa Ct. App. 2006); One Car v. State, 122 S.W.3d 422, 423 n.2,

428 (Tex. App. 2003); State v. Bergquist, 641 N.W.2d 179, 180 (Wis.

Ct. App. 2002); State v. Leyva, 985 P.2d 498, 504 (Ariz. Ct. App.

1998); Tellevik v. Real Prop., 921 P.2d 1088, 1093-94 (Wash. Ct.

App. 1996); Attorney-Gen. v. One Green 1993 Four Door Chrysler,

217 A.D.2d 342, 345 (N.Y. App. Div. 1996).

19

B. Indiana joins Montana, Mississippi, and

the Michigan Court of Appeals in holding that the Excessive Fines Clause does

not apply to the States.

The Indiana Supreme Court acknowledged parting ways with the weight of authority on the question

presented. In so doing, the court aligned itself with a

growing minority of jurisdictions that have written off

the nationwide force of the Excessive Fines Clause.

In a civil-forfeiture case, like this one, the Montana Supreme Court refused to treat the Excessive

Fines Clause as incorporated against the States. State

v. 2003 Chevrolet Pickup, 202 P.3d 782, 783 (Mont.

2009). Reasoning that this Court has not clearly incorporated the Clause, the Montana Supreme Court declined to “hold that the Eighth Amendment to the

federal constitution is applicable to Montana, when the

federal courts have not done so.” Id.

The Mississippi Supreme Court has taken a similar approach. Relying on a decision that predates the

Fourteenth Amendment, that court has twice remarked that “[t]he United States Supreme Court has

never held that the Excessive Fines Clause of the

Eighth Amendment is applicable to the states.” One (1)

Charter Arms, Bulldog 44 Special v. State ex rel. Moore,

721 So. 2d 620, 623 (Miss. 1998) (citing Pervear v. Commonwealth, 72 U.S. 475 (1866) and Knapp v. Schweitzer, 357 U.S. 371 (1958), overruled by Murphy v.

Waterfront Comm’n, 378 U.S. 52 (1964)); One (1) 1979

Ford 15V v. State ex rel. Miss. Bureau of Narcotics, 721

20

So. 2d 631, 634 (Miss. 1998). For this reason, Mississippi courts evaluate excessive-fines defenses using a

unique state constitutional test. See Galloway v. City

of New Albany, 735 So. 2d 407, 412 (Miss. 1999) (discussing four-part test); One 2011 Chevrolet Silverado

1500 v. Panola Cty. Narcotics Task Force, 169 So. 3d

967, 970 (Miss. Ct. App. 2014) (same).

Michigan’s lower courts have likewise rejected incorporation. Although the Michigan Supreme Court

has not considered the issue, the intermediate court of

appeals has three times declined to address properly

raised arguments on the ground that “the United

States Supreme Court has never determined that the

Excessive Fines Clause is applicable to the states

through the Fourteenth Amendment.” In re Forfeiture

of $25,505, 560 N.W.2d 341, 347 (Mich. Ct. App. 1996);

see also In re Forfeiture of 5118 Indian Garden Rd., 654

N.W.2d 646, 648 (Mich. Ct. App. 2002) (similar); People

v. Antolovich, 525 N.W.2d 513, 515 (Mich. Ct. App.

1994) (“We decline to determine whether the $25,000

fine imposed violates the Eighth Amendment of the

United States Constitution.”). But see People v. Castillo, No. 243968, 2004 WL 243417, at *1 (Mich. Ct.

App. Feb. 10, 2004) (non-precedential) (“[W]e note that

the Supreme Court recently held that the Due Process

Clause of the Fourteenth Amendment ‘makes the

Eighth Amendment’s prohibition against excessive

fines . . . applicable to the States.’ ”). Like the high

courts of Indiana, Montana, and Mississippi, the

Michigan Court of Appeals conducted no meaningful

analysis of whether the Fourteenth Amendment

21

incorporates the Clause against the States. Rather, the

court refused to apply the Clause based on the absence

of a sufficiently definitive ruling from this Court.

In sum, the state courts taking the minority position have placed the onus on this Court to more clearly

hold that the Excessive Fines Clause is incorporated.

All of these courts—like the Indiana Supreme Court in

this case—have decided that they will not enforce

excessive-fines defenses under the Eighth Amendment

until this Court decides the question presented.

II.

The Indiana Supreme Court’s decision conflicts with this Court’s precedent.

Review is also warranted because the Indiana Supreme Court’s decision conflicts with this Court’s incorporation precedent. By any measure, the Eighth

Amendment’s protection against excessive fines is

deeply rooted in our nation’s legal tradition, making it

a clear candidate for incorporation. By declining to apply the Clause, the Indiana Supreme Court thus broke

with this Court’s precedent at a fundamental level.

The court compounded that error by failing to undertake the incorporation analysis. By “await[ing] guidance” from this Court, App. 8, the Indiana Supreme

Court neglected its “coordinate responsibility” to determine whether the Clause protects people like Petitioner from excessive fines imposed by state and local

authorities, see Howlett v. Rose, 496 U.S. 356, 367

(1990).

22

1. The Excessive Fines Clause applies to the

States under a straightforward application of this

Court’s precedent. Along with the other Civil War

Amendments, the Fourteenth Amendment “fundamentally altered our country’s federal system.” McDonald,

561 U.S. at 754. And under the selective-incorporation

doctrine, “almost all of the provisions of the Bill of

Rights” apply not just to the federal government, but

to the States and municipalities as well. Id. at 764; see

also id. (“The Court . . . shed any reluctance to hold

that rights guaranteed by the Bill of Rights met the

requirements for protection under the Due Process

Clause.”). In determining whether one of the Bill of

Rights’ provisions applies to the States, the Court asks

whether the right in question “is fundamental to our

scheme of ordered liberty,” id. at 767 (emphasis omitted), and, relatedly, whether it “is ‘deeply rooted in this

Nation’s history and tradition,’ ” id. (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). Unsurprisingly, virtually all of the rights the Framers enshrined

in the first eight amendments satisfy this test.

The Eighth Amendment’s protection against excessive fines is no different. On at least seven occasions, this Court has said that the Clause applies to the

States by way of the Fourteenth Amendment.6 Like the

protections against “cruel and unusual punishments”

and “excessive bail”—which the Court long ago applied

6

Hall, 134 S. Ct. at 1992; Kennedy, 554 U.S. at 419; Baze, 553

U.S. at 47 (plurality opinion); Cooper Indus., 532 U.S. at 433-34;

Harmelin, 501 U.S. at 962 (opinion of Scalia, J.); Thompson, 487

U.S. at 819 n.1 (plurality opinion); Booth, 482 U.S. at 501 n.5.

23

to the States—the Excessive Fines Clause “prevent[s]

the government from abusing its power to punish.”

Austin v. United States, 509 U.S. 602, 607 (1993) (emphasis omitted). Together, the three Clauses “place[ ]

limits on the steps a government may take against an

individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and

unusual punishments.” Browning-Ferris Indus., 492

U.S. at 275. By working in harmony “to prohibit all excessive punishments,” Atkins v. Virginia, 536 U.S. 304,

311 n.7 (2002), the Clauses secure Americans’ life, liberty, and property, see U.S. Const. amend. XIV, § 1.

There is thus “no reason to distinguish one Clause of

the Eighth Amendment from another for purposes of

incorporation.” Browning-Ferris Indus., 492 U.S. at 284

(O’Connor, J., concurring in part and dissenting in

part). All three Clauses stand as “parallel limitations”

securing the same unitary right to be free from disproportionate punishment. See id. at 263 (majority opinion); cf. Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality

opinion) (“The basic concept underlying the Eighth

Amendment is nothing less than the dignity of man.”).

Like the rest of the Eighth Amendment, of

course, the Excessive Fines Clause is also “deeply

rooted” in our constitutional tradition. See McDonald,

561 U.S. at 767. At the time of ratification, “at least

eight of the original States . . . had some equivalent of

the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions.” BrowningFerris Indus., 492 U.S. at 264. The Eighth Amendment’s language was borrowed from the Virginia

24

Declaration of Rights, which drew from the 1689 English Bill of Rights, which in turn declared that “excessive Bail ought not to be required, nor excessive Fines

imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large

440, 441 (1689), quoted in Browning-Ferris Indus., 492

U.S. at 266-67. Blackstone traced the constitutional

protection against excessive fines back further still, to

Magna Carta, and before that to the reign of Henry II.

See 4 William Blackstone, Commentaries *372; see generally McDonald, 561 U.S. at 768 (looking to Blackstone and the English Bill of Rights to determine that

the Second Amendment is incorporated).

The same mistrust of the government’s power

to punish inspired the Eighth Amendment. The “primary focus” of the Amendment “was the potential

for governmental abuse of its ‘prosecutorial’ power,”

Browning-Ferris Indus., 492 U.S. at 266, with the Excessive Fines Clause in particular “limiting the ability

of the sovereign to use its prosecutorial power, including the power to collect fines, for improper ends,” id. at

267. In adopting the Eighth Amendment, the Framers

thus “uncritically claim[ed] a liberty of their heritage.”

See Laurence Claus, The Antidiscrimination Eighth

Amendment, 28 Harv. J.L. & Pub. Pol’y 119, 134 (2004).

Relying on Anglo-American legal traditions, they recognized that economic sanctions can impose burdens

no less punishing than incarceration; an excessive fine,

after all, can “amount[ ] to imprisonment for life.” 4

William Blackstone Commentaries *373. When the

Fourteenth Amendment was ratified, in 1868, these

25

same concerns persisted. By that time, 35 state constitutions included protections against excessive fines.

See Steven G. Calabresi & Sarah E. Agudo, Individual

Rights Under State Constitutions When the Fourteenth

Amendment Was Ratified in 1868: What Rights Are

Deeply Rooted in American History and Tradition?, 87

Tex. L. Rev. 7, 82 (2008); cf. McDonald, 561 U.S. at 769,

777 (looking to state constitutions during the periods

surrounding ratification of the Bill of Rights and the

Fourteenth Amendment to determine incorporation).

For these reasons, the Framers counted the protection against excessive fines as among those fundamental rights that are essential to our system of

ordered liberty, and the Fourteenth Amendment’s

ratifiers intended that protection to apply to the

States.

2. Like the courts of Montana, Mississippi, and

Michigan, the Indiana Supreme Court took account of

none of these principles. In that court’s view, it was

enough that this Court has not issued a “definitive

holding” on the question of the Excessive Fines

Clause’s incorporation. App. 9. And because “Indiana is

a sovereign state within our federal system,” the court

“elect[ed] not to impose federal obligations on the State

that the federal government itself has not mandated.”

App. 9. Until this Court “decides the issue authoritatively,” the Indiana Supreme Court thus announced

that it would “decline to subject Indiana to a federal

test that may operate to impede development of our

own excessive-fines jurisprudence under the Indiana

Constitution.” App. 8, 9 (emphasis in original).

26

Far from being “cautious,” App. 8, this reasoning

raises grave constitutional concerns in its own right.

Our federal system “charges state courts with a coordinate responsibility” to give effect to all Americans’

federally protected rights. Howlett, 496 U.S. at 367.

This includes deciding whether federal constitutional

provisions like the Excessive Fines Clause protect

against penalties levied by state and local governments. For “the Constitution and laws passed pursuant

to it are as much laws in the States as laws passed by

the state legislature.” Id.; see also Claflin v. Houseman,

93 U.S. 130, 137 (1876) (explaining that federal and

state courts both must enforce “the laws of the United

States”). By declining to engage with this issue, the Indiana Supreme Court thus effectively “den[ied] a federal right.” Howlett, 496 U.S. at 369.

By dismissing the Excessive Fines Clause as “a

federal test” that could “impede development” of state

law, App. 9, the Indiana Supreme Court also misunderstood the supremacy of the federal Constitution, see

U.S. Const. art. VI, cl. 2. State courts—no less than federal courts—must give effect to the Constitution. And

it is never the case that a constitutional protection

should remain unincorporated simply to avoid interfering with state laws. See McDonald, 561 U.S. at 790

(plurality opinion) (“Incorporation always restricts experimentation and local variations, but that has not

stopped the Court from incorporating virtually every

other provision of the Bill of Rights.”). Yet the Indiana

Supreme Court’s reasoning begins and ends with that

flawed premise. See App. 9. The Court should thus

grant certiorari, reaffirm the state courts’ coordinate

27

duty to enforce federally protected rights, and hold

that the Excessive Fines Clause is incorporated

against the States.

III. The question presented raises issues of national importance that warrant this Court’s

review.

As suggested by the number of courts that have

considered the question presented, see pp. 13-21, supra, whether the Excessive Fines Clause applies to the

States is an important and recurring issue. It is important in all 50 States (and countless localities),

which levy fines and forfeit property on a daily basis.

And it is important to the many Americans every year

targeted for punitive economic sanctions by state and

local authorities. As the Indiana Supreme Court put it,

only a “definitive holding” from this Court (App. 9) will

guarantee that the Clause can act as a truly national

counterweight to the “terrifying force of the criminal

justice system.” Robertson v. United States ex rel. Watson, 560 U.S. 272, 273 (2010) (Roberts, C.J., dissenting

from dismissal of certiorari). There is no reason to wait

to resolve the question presented, and this case is the

perfect vehicle in which to do so.

A. The Excessive Fines Clause is a key protection against punitive economic sanctions by States and municipalities.

The main evil addressed by the Excessive Fines

Clause—like its precursors in the English Bill of

28

Rights and Magna Carta—is the sovereign impulse to

“use[ ] the civil courts to extract large payments or forfeitures for the purpose of raising revenue or disabling

some individual.” See Browning-Ferris Indus., 492 U.S.

at 275. This constitutional safety valve is as urgently

needed today as ever. Particularly at the state and local levels, “many lawmakers use economic sanctions in

order to avoid increasing taxes while maintaining governmental services, with some lawmakers even including increases to revenues generated from economic

sanctions in projected budgets.” Beth A. Colgan, The

Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. (forthcoming 2018) (footnotes omitted).

Like the Stuart practices that inspired the Excessive Fines Clause, modern economic sanctions also

“target the politically vulnerable.” Id. “Fines, fees,

and forfeitures can have devastating consequences on

those who are financially vulnerable, particularly in

low-income communities and communities of color

that are most likely to be heavily policed.” Beth A.

Colgan, “Fines, Fees, and Forfeitures” in Reforming

Criminal Justice – Volume 4: Punishment, Incarceration, and Release 212 (Erik Luna ed. 2017) (footnote

omitted). In Ferguson, Missouri, for example, the U.S.

Department of Justice determined that “[c]ity officials

have consistently set maximizing revenue as the

priority for . . . law enforcement activity.” U.S. Dep’t of

Justice, Investigation of the Ferguson Police Department, at 9 (Mar. 4, 2015). The roughly 3,000 residents

of nearby Pagedale—five miles to the south of

29

Ferguson—have been fined for trivial offenses like

missing curtains, aging paint, walking on the left side

of crosswalks, and enjoying a beer within 150 feet of a

grill. See George F. Will, A Missouri town demands substantive due process, The Wash. Post (Dec. 11, 2015),

https://goo.gl/Jfq667. From 2010 to 2013, the number

of non-traffic tickets in Pagedale increased 495%, with

the city collecting $356,601 in associated fines and fees

in 2013 alone. Id. In 2014, authorities issued nearly

enough non-traffic tickets for each household within

city limits to receive two. See Jennifer S. Mann, Lawsuit filed against Pagedale for ticketing high grass and

other code violations, St. Louis Post-Dispatch (Nov. 4,

2015), https://goo.gl/Qmc86R.

In civil-forfeiture cases, like this case, the Excessive Fines Clause is a vitally important check on the

government’s impulse to punish disproportionately. In

the majority of States and at the federal level, when

property is forfeited most (and often all) of the resulting proceeds flow to law-enforcement coffers, frequently those of the seizing agency. As a result, state

and federal agencies have increasingly resorted to civil

forfeiture as a revenue-raising tool. In 2012 alone,

agencies in 26 States and the District of Columbia took

in more than $254 million through forfeiture. Institute

for Justice, Dick M. Carpenter II et al., Policing for

Profit: The Abuse of Civil Asset Forfeiture 11 (2d ed.

2015), https://goo.gl/sY32sT. (Between 2001 and 2014,

total deposits in the Department of Justice and Treasury forfeiture funds approached $29 billion. Id. at 10.)

Nationwide, the modern civil-forfeiture system “has

30

led to egregious and well-chronicled abuses.” Leonard

v. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., statement respecting denial of certiorari). And, like economic sanctions generally, forfeitures “frequently

target the poor and other groups least able to defend

their interests in forfeiture proceedings.” Id.

Indiana vividly illustrates these national problems. As one prosecutor declared after law enforcement

acquired a financial stake in civil forfeiture, “the statute is limited only by your own creativity.” Joseph T.

Hallinan, Police can take crime cash but can’t dish it

out, The Indianapolis Star, Feb. 2, 1986, at 6B. Moreover, Indiana’s forfeiture system has inspired a unique

set of abuses. Unlike every other State, Indiana allows

local prosecutors to outsource their civil-forfeiture

cases to private-sector lawyers on a contingency-fee

basis. See Ind. Code § 34-24-1-8. Petitioner’s case, for

example, was prosecuted by a private law firm. See

App’x of Appellant at 10-11, State v. Timbs, No. 27A041511-MI-1976 (Ind. Ct. App. filed Mar. 30, 2016) (complaint); see generally David P. Smith, Prosecution and

Defense of Forfeiture Cases ¶ 1.01, at 1-13 (LexisNexis

2017) (“The biggest scandal of all is Indiana’s institutionalized bounty hunter system in which state DAs

contract with private attorneys to handle all of the

county’s civil forfeiture cases for a contingent fee of a

quarter or a third of all the property they forfeit.”).

This system of mercenary prosecutors only magnifies the Excessive Fines Clause’s animating concern:

that state power will be harnessed “for raising revenue

in unfair ways, or for any other improper use.”

31

Browning-Ferris Indus., 492 U.S. at 272. Predictably,

private-sector lawyers pocket hundreds of thousands

of dollars based on forfeitures. See generally Heather

Gillers et al., Cashing in on crime: Indiana law allows

prosecutors to farm out forfeiture cases to private lawyers – who get a cut of the money, The Indianapolis

Star, Nov. 14, 2010, at A1. One deputy prosecutor litigated criminal cases while moonlighting as a contingency-fee lawyer in parallel forfeiture proceedings.

“On numerous occasions when the ethics of the asset

forfeiture procedures were called into question,” the

Indiana Supreme Court later found, “[the prosecutor]

turned a blind eye and acted to protect his private interest in his continued pursuit of forfeiture property.”

In re McKinney, 948 N.E.2d 1154, 1155-56 (Ind. 2011).

In the same county, a local trial court investigated the

same system, which it termed “a carefully crafted assault on the judicial system and court adjudication of

civil forfeitures.” Findings and Report on Civil Drug

Forfeitures in Division 2, Including a Limited Number

of Cases in the Other Four Divisions of the Delaware

Circuit Court, at 6 (Ind. Cir. Ct., Delaware Cty. Aug. 18,

2008), https://goo.gl/TCHk4S; see also id. at 13 (“The

handling of civil drug forfeitures amounts to fraud on

the court.”).

Elsewhere in Indiana, a county council sued its local sheriff and prosecutor over their “respective roles

in administering civil forfeiture proceedings, including

most notably the handling of funds therefrom.” Knox

Cty. Council v. Sievers, 895 N.E.2d 1263, 1265 (Ind. Ct.

App. 2008). As alleged in that case, the state auditing

32

agency “found a deficiency balance of $51,987.00 in the

Drug Seizure Fund,” id., but law-enforcement officials

refused to produce even basic information “concerning

the financial aspects of [the county’s] civil forfeiture

proceedings,” id. at 1266. And last year, a federal audit

found that Indiana’s Henry County and a neighboring

police department misspent more than $300,000 in

federal forfeiture money on “unallowable purchases”

and “unallowable salary and fringe benefit costs.”

Office of the Inspector Gen., U.S. Dep’t of Justice, Audit

of Henry County Sheriff ’s Office’s Equitable Sharing

Program Activities, New Castle, Indiana at 4 (Feb.

2017), https://goo.gl/A56PuJ.

For ordinary citizens—many of them low-level

drug offenders or innocent property owners—the

real-world consequences are profound. With economic

sanctions serving as both punishment and revenue

source, “law enforcement Weapons of Mass Destruction” are increasingly deployed against “pedestrian

targets.” Sargent v. State, 27 N.E.3d 729, 735 (Ind.

2015) (Massa, J., dissenting). In one case, Indianapolis

law enforcement sued to forfeit a teenager’s car, which

was found with “a large quantity of Gatorade bottles

and assorted snacks and candies” stolen from a playground concession stand. See Pls.’ Mot. Summ. J., State

v. Jaynes, No. 49D01-1111-MI-043642, 2012 WL

12974140 (Ind. Super. Ct., Marion Cty. filed May 23,

2012). In another case, the State tried to forfeit a

woman’s 1996 Buick Century after she attempted to

shoplift four iPhones. Sargent, 27 N.E.3d at 731. When

the Indiana Supreme Court rejected that forfeiture on

33

statutory grounds, see id. at 733, even a dissenting justice voiced bewilderment at the State’s “overreach,” id.

at 735 (Massa, J., dissenting); see also id. at 734 (“But

really? Firing Sargent and having her righteously

prosecuted for felony theft was not enough? The State

had to take her car, too?”).

The abuse of fines and forfeitures is not unique to

Indiana. Nor is it new. The pressure to generate “royal

revenue” is a well-recognized byproduct of any system

of economic sanctions. See Browning-Ferris Indus., 492

U.S. at 271. Unlike every other form of punishment—

all of which cost the government money—“fines are

a source of revenue.” Harmelin, 501 U.S. at 978 n.9

(opinion of Scalia, J.). So “[t]here is good reason to be

concerned that fines, uniquely of all punishments, will

be imposed in a measure out of accord with the penal

goals of retribution and deterrence.” Id. Because “the

State stands to benefit” from levying fines, id., there is

a singular risk that governments—federal, state, and

local alike—will exercise their punitive powers with an

eye toward revenue, rather than justice. The Excessive

Fines Clause is an essential check on the many unjust

punishments that can result from such perverse incentives. Cf. McDonald, 561 U.S. at 918 (Breyer, J., dissenting) (considering “the extent to which incorporation

will further other, perhaps more basic, constitutional

aims”).

B. National uniformity is critical.

Few questions are more demanding of national

resolution than which provisions of the Bill of Rights

34

apply to the several States. By setting a constitutional

floor securing individual liberty, the Fourteenth

Amendment “fundamentally restructured the relationship between individuals and the States.” Zelman v.

Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J.,

concurring). That principle makes this Court’s intervention particularly warranted in a case like this. As

the Indiana Supreme Court recognized, this Court

plays a unique role in deciding incorporation issues.

See App. 8-9. All 50 States, as well as their residents,

need to know which federal protections apply in state

proceedings. In this way, every question of incorporation bears on the nation as a whole, and this Court

alone can provide a nationwide answer.

Of course, the federal-state balance is not just “a

matter of rights belonging only to the States.” Bond v.

United States, 564 U.S. 211, 222 (2011). It also “protects the liberty of the individual from arbitrary

power,” id., with the Fourteenth Amendment “add[ing]

greatly to the dignity and glory of American citizenship, and to the security of personal liberty,” Plessy v.

Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J., dissenting). To be a meaningful right of American citizenship,

however, a right must have equal force throughout the

nation. Today, the Eighth Amendment’s protection

against excessive fines applies in some places, but not

others. The Clause protects people in Idaho, but not

Montana; it protects people in Alabama, but not Mississippi; and—with the Indiana Supreme Court’s decision in this case—it protects people in Illinois, but not

Indiana.

35

By “elect[ing] not to impose federal obligations on

the State,” App. 9, the Indiana Supreme Court has also

undermined the rights of people far beyond Indiana’s

borders. For instance, Indianapolis is home to one of

the nation’s central FedEx hubs,7 which state and local

law enforcement routinely comb for cross-country shipments of cash to seize. See generally Bowman v. State,

81 N.E.3d 1127, 1131 (Ind. Ct. App. 2017), pet. for

transfer pending (holding parcel-seizure practices unlawful). In 2017 alone, Indianapolis prosecutors sued

to forfeit—or to transfer to the federal government—

over $1.5 million in currency seized in this fashion.8

With the Indiana Supreme Court’s decision in this

case, whether citizens fighting these seizures enjoy

any protection under the Excessive Fines Clause depends on happenstance: whether a particular shipment is routed through Indiana and whether a

prosecutor there decides to seek forfeiture in a state

forum or a federal one. The prosecutor may elect to

transfer the property to federal agencies for forfeiture

under federal law, in which case the Clause would apply. See generally Office of the Att’y Gen., Order No.

3946-2017 (Federal Forfeiture of Property Seized by

State and Local Law Enforcement Agencies) (July 19,

2017). Or the prosecutor may proceed in state court, in

which case the Clause would not apply.

7

See Paris Lewbel, Take a look inside Indy’s FedEx hub, the

second-largest in the U.S., Indy Channel (Dec. 15, 2017),

https://goo.gl/g2wp41.

8

This figure is derived from filings available on Indiana’s

online case-management system.

36

This situation calls out for correction. Federally

protected rights should never depend on state borders,

much less on how commercial carriers choose to route

their shipments. “The National Government and,

beyond it, the separate States are bound by the proscriptive mandates of the Eighth Amendment to the

Constitution of the United States, and all persons

within those respective jurisdictions may invoke its

protection.” Kennedy, 554 U.S. at 412. Despite the

Court’s many statements to this effect, however, state

courts and ordinary Americans are in need of a “definitive holding” on whether the Excessive Fines Clause

applies to the States. See App. 9.

C. This case is a good vehicle for deciding

the question presented.

This case offers an excellent vehicle for resolving

the question presented. The Excessive Fines Clause

was the sole basis for the decisions of the trial court,

App. 27-30, and court of appeals, App. 13-26. Both

courts believed that the Clause was incorporated and

so they applied the Clause and ruled in Petitioner’s favor on the merits, holding that forfeiture of his vehicle

would be “grossly disproportionate to the gravity of

[his] offense.” App. 24, 29-30. The Indiana Supreme

Court did not consider whether the lower courts correctly applied the Clause, however. App. 4 (“Before addressing whether forfeiture of Timbs’s Land Rover

would be an excessive fine, we must decide the antecedent question of whether the Excessive Fines Clause

applies to forfeitures by the State.”). Instead, the state

37

high court reversed on one ground: This Court has not

“authoritatively” held that the Clause applies to the

States. App. 8. That decision turned on no factual findings or matters of state law. And, like the lower courts

in Austin, the Indiana Supreme Court “had no occasion

to consider what factors should inform [the Eighth

Amendment analysis] because it thought it was foreclosed from engaging in the inquiry.” See Austin, 509

U.S. at 622. The incorporation question could not be

more cleanly presented.

Nor is there any reason to delay addressing the issue, which this Court raised nearly three decades ago.

See Browning-Ferris Indus., 492 U.S. at 276 n.22. Further percolation serves little purpose. Every court that

has dealt with this issue has (tacitly or expressly)

looked to this Court for guidance. The courts that apply

the Clause to the States do so because they view this

Court’s prior statements as commanding incorporation. See supra pp. 13-18. Conversely, those courts that

decline to apply the Clause have read the very same

statements and concluded they leave the incorporation

issue unsettled. See supra pp. 19-21. Those courts taking the minority position—Montana, Mississippi, the

Michigan Court of Appeals, and now Indiana—have

not analyzed whether the Clause applies to the States

under this Court’s incorporation precedent. Rather,

like Indiana, they have decided that, until this Court

issues a “definitive holding,” they will “elect not to impose federal obligations on the State that the federal

government itself has not mandated.” See App. 9.

38

This Court should grant review, hold that the Excessive Fines Clause applies to the States, and reaffirm

that state courts—like the federal courts—bear “the

duty to safeguard and enforce the right of every citizen.” Howlett, 496 U.S. at 368 (quoting Minneapolis &

St. L.R. Co. v. Bombolis, 241 U.S. 211, 222 (1916)).

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DARPANA M. SHETH

SAMUEL B. GEDGE

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

dsheth@ij.org

sgedge@ij.org

WESLEY P. HOTTOT*

INSTITUTE FOR JUSTICE

10500 NE 8th Street,

Suite 1760

Bellevue, WA 98004

(425) 646-9300

whottot@ij.org

*Counsel of Record

Counsel for Petitioners