Amicus Curiae Brief — Tyson Timbs, Petitioner v. Indiana

Supreme Court briefMar 5, 2018

Ask Donna

What actually matters in this document.

Text

No. 17-1091

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

In The

Supreme Court of the United States

-----------------------------------------------------------------TYSON TIMBS and

A 2012 LAND ROVER LR2,

Petitioners,

STATE OF INDIANA,

Respondent.

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

To The Indiana Supreme Court

-----------------------------------------------------------------BRIEF OF AMICI CURIAE THE

SOUTHERN POVERTY LAW CENTER

AND THE CATO INSTITUTE

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------CLARK M. NEILY III

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

Tel: 202.842.0200

cneily@cato.org

jschweikert@cato.org

SAMUEL BROOKE

THE SOUTHERN

POVERTY LAW CENTER

400 Washington Ave.

Montgomery, AL 36104

Tel: 334.956.8200

samuel.brooke@splcenter.org

AVERIL B. ROTHROCK*

CLAIRE L. ROOTJES

SCHWABE, WILLIAMSON

& WYATT, P.C.

1420 5th Ave., Suite 3400

Seattle, WA 98101

Tel: 206.622.1711

arothrock@schwabe.com

crootjes@schwabe.com

*Counsel of Record

Counsel for Amici Curiae

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ...........................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

I. In recent years, American citizens have

faced an unprecedented increase in criminal fines, fees, and forfeitures .....................

II.

Unchecked fines, fees, and forfeitures pervert criminal justice aims and lead to increased societal costs due to increases in

poverty, crime, and mass incarceration .......

III.

Unchecked fines, fees, and forfeitures distort law enforcement priorities and incentivize unconstitutional behavior ................. 10

IV.

The Court should grant certiorari to provide

a necessary and uniform constitutional safeguard against excessive fines ...................... 14

CONCLUSION .......................................................

TABLE OF AUTHORITIES

Page

CASES

Alexander v. United States, 509 U.S. 544 (1993) ..........4

Austin v. United States, 509 U.S. 602 (1993) ...............4

Bearden v. Georgia, 461 U.S. 660 (1983) .......... 9, 13, 14

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

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

Cantwell v. Connecticut, 310 U.S. 296 (1940),

rev’g State v. Cantwell, 8 A.2d 533 (Conn.

1939) ........................................................................20

Connally v. Georgia, 429 U.S. 245 (1977) ...................13

De Jonge v. Oregon, 299 U.S. 353 (1937), rev’g

State v. De Jonge, 51 P.2d 674 (Or. 1935) ...............20

Douglas v. New York, N. H. & H. R. Co., 279 U.S.

377 (1929) ................................................................16

Edwards v. South Carolina, 372 U.S. 229 (1963),

rev’g State v. Edwards, 123 S.E.2d 247 (S.C.

1961) ........................................................................20

Gitlow v. New York, 268 U.S. 652 (1925), aff ’g

People v. Gitlow, 195 A.D. 773 (N.Y. App. Div.

1921) ........................................................................20

Howlett v. Rose, 496 U.S. 356 (1990) .................... 16, 20

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

(Mich. Ct. App. 1996) ...............................................18

In re Forfeiture of 5118 Indian Garden Rd., 654

N.W.2d 646 (Mich. Ct. App. 2002) ...........................19

Marshall v. Jericho, 446 U.S. 238 (1980) ....................13

iii

TABLE OF AUTHORITIES – Continued

Page

McKnett v. St. Louis & S. F. R. Co., 292 U.S. 230

(1934) .......................................................................17

Miles v. Illinois C.R. Co., 315 U.S. 698 (1942) ...... 16, 17

Palko v. Connecticut, 302 U.S. 319 (1937), aff ’g

State v. Palko, 191 A. 320 (Conn. 1937), rev’d

on other grounds by Benton v. Maryland, 395

U.S. 784 (1969) ........................................................20

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

1994) ........................................................................19

Qwest Corp. v. Minnesota Public Utilities Commission, 427 F.3d 1061 (8th Cir. 2005) ...................18

Second Employers’ Liability Cases, 223 U.S. 1

(1912) ................................................................. 19, 20

State v. Forfeiture of 2003 Chevrolet Pickup, 202

P.3d 782 (Mont. 2009) ....................................... 17, 18

Tumey v. Ohio, 273 U.S. 510 (1927) ............................13

United States v. Bajakajian, 524 U.S. 321 (1998) ......... 19

Ward v. Village of Monroeville, 409 U.S. 57 (1972) ....... 13

Williams v. Illinois, 399 U.S. 235 (1970) ....................21

Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000) .......18

CODES, STATUTES, AND RULES

U.S. Const. amend. I ............................................. 13, 20

U.S. Const. amend. IV .................................................13

TABLE OF AUTHORITIES – Continued

Page

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

U.S. Const. amend. XIV, § 1 ...................... 13, 14, 15, 20

OTHER AUTHORITIES

Alexes Harris, et al., Drawing Blood from Stones:

Legal Debt and Social Inequality in Contemporary United States, 115 AM. J. SOCIOLOGY

1753 (2010) ............................................................ 5, 8

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

in Reforming Criminal Justice – Volume 4:

Punishment, Incarceration, and Release (Erik

Luna ed. 2017) ............................................. 6, 7, 8, 10

Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool for

Systemic Reform, 58 WM. & MARY L. REV.

1179 (2017) ..............................................................10

Brent D. Mast, Bruce L. Benson & David W. Rasmussen, Entrepreneurial Police and Drug Enforcement Policy, 104 PUB. CHOICE 284 (2000) .......10

Dick M. Carpenter II et al., Policing for Profit:

The Abuse of Civil Asset Forfeiture (2d ed.

2015) ..........................................................................4

Faith E. Lutze et al., Homelessness and Reentry:

A Multisite Outcome Evaluation of Washington State’s Reentry Housing Program for High

Risk Offenders, 41 CRIM. JUST. & BEHAV. 471

(2013) .........................................................................8

TABLE OF AUTHORITIES – Continued

Page

Jeff Manza and Christopher Uggen, Locked Out:

Felon Disenfranchisement and American Democracy (Oxford Univ. Press 2006) ..........................8

John L. Worrall, Addicted to the Drug War: The

Role of Civil Asset Forfeiture as a Budgetary

Necessity in Contemporary Law Enforcement,

29 J. CRIM. JUST. 171 (2001) ....................................10

Joseph Shapiro, Supreme Court Ruling Not

Enough to Prevent Debtors Prisons, NATIONAL

PUBLIC RADIO (May 21, 2014) ....................................5

Katherine Beckett & Alex Harris, On Cash and

Conviction: Monetary Sanctions as Misguided

Policy, 10 J. CRIMINOLOGY & PUB. POL’Y 509

(2011) .........................................................................7

Katherine D. Martin, et al., Shackled to Debt:

Criminal Justice Financial Obligations and

the Barriers to Re-entry They Create, HARVARD

KENNEDY SCHOOL & NAT’L INST. OF JUSTICE

(Jan. 2017) ....................................................... passim

Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Duke

Univ. Press 2009) .................................................. 4, 5

Rachel L. McLean & Michael D. Thompson, Council of State Gov’t Justice Ctr., Repaying Debts

(2007) .........................................................................8

TABLE OF AUTHORITIES – Continued

Page

Robert O’Hara, Jr. & Steven Rich, Asset Seizures

Fuel Police Spending, WASH. POST (Oct. 11,

2014), http://www.washingtonpost.com/sf/

investigative/2014/10/11/asset-seizures-fuelpolice-spending/?utm_term=.f5abfdc53077 .... 10, 11, 14

Saneta deVuono-powell, Who Pays? The True

Cost of Incarceration on Families, Ella Baker

Center, Forward Together, Research Action

Design (Sept. 2015) ...................................................6

Thomas A. Garrett & Gary A. Wagner, Red Ink

in the Rearview Mirror: Local Fiscal Conditions and the Issuance of Traffic Tickets, 52

J.L. & ECON. 71 (2009) ............................................10

United States Dep’t of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (2015), https://www.justice.gov/sites/

default/files/opa/press-releases/attachments/

2015/03/04/ferguson_police_department_report.

pdf ................................................................... passim

INTEREST OF AMICI CURIAE1

The Southern Poverty Law Center (“SPLC”) has

provided pro bono civil rights representation to lowincome persons in the Southeast since 1971, with particular focus on combating unlawful discrimination

and ending poverty. The SPLC provides educational

materials, engages in policy reform, and develops litigation to minimize the burdens placed on the poor, to

ensure meaningful access to social safety nets, and to

enable upward mobility.

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. The Cato Institute’s

Project on Criminal Justice was founded in 1999, and

focuses on the proper role of the criminal sanction in a

free society, the scope of substantive criminal liability,

the proper and effective role of police in their communities, the protection of constitutional and statutory

safeguards for criminal suspects and defendants, citizen participation in the criminal justice system, and

accountability for law enforcement officers.

The SPLC and the Cato Institute as amici curiae

are concerned that local jurisdictions pursue civil and

criminal fines, fees, and forfeitures at alarmingly high

All parties have consented to the filing of this brief. Amici

affirm that no counsel for any party authored this brief in whole

or in part and that no person or entity made a monetary contribution specifically for the preparation or submission of this brief.

The parties were notified ten days prior to the due date of this

brief of the intention to file.

rates. Faults in our criminal justice system demonstrate

that the protections of the Eighth Amendment are urgently needed across America. The Indiana Supreme

Court’s failure to even analyze whether the Eighth

Amendment’s Excessive Fines Clause applies to the

State of Indiana is deeply troubling, evidencing a dereliction of the court’s duty to ensure the citizens of Indiana enjoy the protections granted them by federal

law.

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

SUMMARY OF ARGUMENT

In the last three decades, there has been an unprecedented rise in fines, fees, and forfeitures imposed

by state and federal criminal justice systems. The burgeoning emphasis on revenue generation to the exclusion of all else is transforming the landscape of the

American criminal justice system – and not for the

better. Unchecked fines, fees, and forfeitures increase

poverty, crime, recidivism, and mass incarceration, ultimately costing the taxpayers and society much more

than the revenue generated. Despite these societal

costs, many law enforcement agencies and municipal

entities see the benefit of revenues collected directly in

their bottom line. This Court has recognized that when

law enforcement can directly profit from revenues, constitutional safeguards must be at their zenith to protect against unconstitutional behavior. Yet the Indiana

Supreme Court failed to even consider whether the Excessive Fines Clause provided such a safeguard for the

citizens of Indiana. This Court should grant certiorari

to resolve the issue of incorporation of the Excessive

Fines Clause and establish uniformity of judicial approach.

This brief proceeds in four parts. First, it details

the unprecedented increase in civil and criminal fines,

fees, and forfeitures in the last few decades. Second,

this brief explains the distortion of criminal justice

that results from such governmental self-dealing. Allowing unchecked fines, fees, and forfeitures undermines governmental aims of reducing poverty, crime,

and mass incarceration. Third, this brief looks at how

local governments’ pursuit of fines, fees, and forfeitures distorts law enforcement priorities and incentivizes unconstitutional behavior by law enforcement and

governmental entities. Lastly, this brief explains how

the approach in the decision below abjectly failed to secure constitutional rights, causing great harm to the

criminal justice system.

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

ARGUMENT

IN RECENT YEARS, AMERICAN CITIZENS

HAVE FACED AN UNPRECEDENTED INCREASE IN CRIMINAL FINES, FEES, AND

FORFEITURES.

In the United States today, 10 million people hold

criminal debt amounting to over $50 billion.2 In the

Katherine D. Martin et al., Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-entry They

last three decades, there has been an unprecedented

rise in fines, fees, and forfeitures imposed by state and

federal criminal justice systems. This proliferation of

criminal debt takes a number of forms, including fines

and fees imposed at all stages of criminal proceedings,

payment of restitution to victims,3 and the use of “civil

forfeitures,” where the government seizes property

even without a criminal conviction.4 Just federal civil

forfeitures have increased 4,667% between 1986 and

2014.5 That enormous percentage is not a typographical error.

The number of individuals in the criminal justice

system also has increased dramatically over the past

few decades. “Between 1983 and 2001, incarceration (jail

and prison) in the United States increased from 275

inmates per 100,000 to 686 inmates per 100,000. . . .”6

The number of individuals on parole also swelled dramatically, jumping from 1.84 million people in 1980 to

6.47 million in 2000.7

Create, HARVARD KENNEDY SCHOOL & NAT’L INST. OF JUSTICE 3

(Jan. 2017).

Id. at 4.

Civil forfeiture is distinct from criminal forfeiture, which is

imposed as part of criminal sentencing, see Alexander v. United

States, 509 U.S. 544, 548 (1993), and also from forfeitures agreed

to by a defendant as a part of a plea deal, see, e.g., Austin v. United

States, 509 U.S. 602, 604-05 (1993).

Dick M. Carpenter II et al., Policing for Profit: The Abuse of

Civil Asset Forfeiture 5 (2d ed. 2015).

Martin, supra, at 3.

Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity 133 (Duke Univ. Press 2009).

To obscure the cost of this burgeoning prison population, jurisdictions impose fines, fees, and forfeitures

as a way to raise funds without visibly raising taxes.

Studies show state criminal justice budgets (combined)

increased from roughly $35 billion to $130 billion per

year between 1982 and 1997.8 To help pay for the dramatic growth of incarcerated and paroled individuals,

and the judicial systems that charge such individuals,

local governments impose fines at every step of criminal proceedings. For example, in Ferguson, Missouri,

fines, fees, and forfeitures constituted more than 20%

of the city’s 2013 general revenue fund.9

Since 2010, 48 states have increased civil and

criminal fees.10 One report indicated that in 1991, 25%

of prison inmates were assessed fines, but by 2004,

that figure had risen to 66%.11 The vast majority of incarcerated persons rack up tremendous debt due to

fees imposed while they are in prison. In 2005, studies

showed that 90% of those behind bars were charged fees

for programs and services such as medical care, work

release programs, and telephone use.12 Eighty-five

Id. at 157.

United States Dep’t of Justice, Civil Rights Division, Investigation of the Ferguson Police Department 9 (2015), https://www.

justice.gov/sites/default/files/opa/press-releases/attachments/2015/

03/04/ferguson_police_department_report.pdf (“Ferguson Report”).

Joseph Shapiro, Supreme Court Ruling Not Enough to Prevent Debtors Prisons, NATIONAL PUBLIC RADIO (May 21, 2014).

Alexes Harris, et al., Drawing Blood from Stones: Legal

Debt and Social Inequality in Contemporary United States, 115

AM. J. SOCIOLOGY 1753, 1785-86 (2010).

Martin, supra, at 5.

percent of people on probation and parole are also required to pay supervision fees, fines, and restitution if

they want to remain free.13 A recent study shows that

families of the formerly incarcerated incur, on average,

$13,607 for court-related fines and fees.14 For the vast

majority of formerly incarcerated persons who are lowincome, this burden is impossible to overcome.

II.

UNCHECKED FINES, FEES, AND FORFEITURES PERVERT CRIMINAL JUSTICE AIMS

AND LEAD TO INCREASED SOCIETAL

COSTS DUE TO INCREASES IN POVERTY,

CRIME, AND MASS INCARCERATION.

Unchecked fines, fees, and forfeitures pervert the

goals of criminal justice. First, this myopic focus on

revenue generation causes law enforcement to “fail to

consider, or even implement policies that directly conflict with, public-safety needs.”15 The Department of

Justice’s Ferguson Report profiles a poignant example

of what happens when law enforcement becomes focused on revenue at the expense of public safety. That

study demonstrated that focus on revenue generation

resulted in unconstitutional and racially motivated behavior by law enforcement and municipal employees,

Id.

Saneta deVuono-powell, Who Pays? The True Cost of Incarceration on Families, Ella Baker Center, Forward Together, Research Action Design 9 (Sept. 2015).

Beth A. Colgan, “Fines, Fees, and Forfeitures” in Reforming Criminal Justice – Volume 4: Punishment, Incarceration, and

Release 209 (Erik Luna ed. 2017) (“Colgan”).

financial hardship for Ferguson’s most vulnerable populations, and an erosion of public trust in municipal

institutions and leadership.16 Another study showed

that allowing police to retain forfeited property “increased arrests related to drug activity compared to total arrests by nearly 20%.”17

Second, the trend towards rising fines, fees, and

forfeitures especially harms vulnerable populations

who are living at or below the poverty line, and may

actually increase poverty, crime, and mass incarceration. “By entrenching or exacerbating the financial vulnerability of people and their families, fines, fees, and

forfeitures can create long-term instability and familial disruption, increase criminal justice involvement,

aggravate jail overcrowding, and – perhaps ironically

– decrease net revenue.”18

For those without the ability to pay, fees and fines

mean that even the most casual encounter with the

criminal justice system can have catastrophic results.

Those facing criminal debt must often choose between

paying their debts and providing for basic needs like

food and shelter.19 Studies have linked increased fines

to inability to pay child support or secure public housing, resulting in increased difficulties for low-income

See generally Ferguson Report.

Colgan, supra, at 211.

Id.

Katherine Beckett & Alex Harris, On Cash and Conviction:

Monetary Sanctions as Misguided Policy, 10 J. CRIMINOLOGY &

PUB. POL’Y 509, 517 (2011).

families.20 Criminal debt may also damage a debtor’s

credit rating, prevent a debtor from expunging criminal records, or cost a debtor professional or driver’s

licenses.21 According to one study, 80% of those interviewed found their criminal debt obligations to be “unduly burdensome.”22

The burgeoning business of fines, fees, and forfeitures also undermines rehabilitation by increasing recidivism. Unsurprisingly, people with unmanageable

criminal debt are pressured into committing further

crimes just to manage this burden.23 Criminal debt

can prevent access to public-sector employment and

government-related private occupations,24 and also prompt

“additional warrants, liens, wage garnishments and

tax rebate interception.”25 Again, unsurprisingly, the

inability to secure stable housing or employment also

makes re-offense more likely.

Rachel L. McLean & Michael D. Thompson, Council of

State Gov’t Justice Ctr., Repaying Debts 7-8 (2007).

Colgan, supra, at 212.

Harris, supra, at 1785-86.

Id.; Faith E. Lutze et al., Homelessness and Reentry: A

Multisite Outcome Evaluation of Washington State’s Reentry

Housing Program for High Risk Offenders, 41 CRIM. JUST. & BEHAV. 471 (2013).

Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (Oxford Univ. Press

2006).

Martin, supra, at 9.

Incarceration for inability to pay fines is unconstitutional under Bearden v. Georgia,26 but it remains a

common practice. In many states, debtors account for

a quarter of jail populations.27 Further incarceration

can follow failure to pay criminal debt in a number

of ways – those on probation may have probation revoked; criminal or civil offenses may result in incarceration for willful failure to pay; debtors may sometimes

pay off debts by serving time in jail; and individuals

may be arrested and jailed for missing a payment or

not appearing at a hearing.28 Or, as noted above, they

may simply be denied employment and turn to crime

to satisfy outstanding fines.

Debtors’ prisons are no more effective or just now

than they were in Dickensian England. Putting individuals in prison for inability to pay criminal debt is

impractical and expensive, and disproportionately impacts low-income communities. The reality is that only

a sliver of this nation’s criminal debt is collected: for

instance, of the $100 billion owed to the federal government in criminal debt, only about $4 billion per

year is collected.29 The proliferation of criminal debt is

hurting society at large and costing the system much

more than the revenue generated.

461 U.S. 660, 661-62 (1983).

Ferguson Report, n.12.

Martin, supra, at 10.

Id. at 5.

III. UNCHECKED FINES, FEES, AND FORFEITURES DISTORT LAW ENFORCEMENT

PRIORITIES AND INCENTIVIZE UNCONSTITUTIONAL BEHAVIOR.

When law enforcement is driven primarily by revenue generation, policing practices will naturally give

less attention to either promoting public safety or respecting constitutional rights. For example, unchecked

civil forfeiture means that drug activity receives

disproportionate attention relative to plausible public

safety concerns – simply because that is where the

cash is.30 Likewise, ticketing revenue demonstrably upticks when city revenues decline.31

The scope of civil forfeiture untied to any criminal

action is simply astounding. The Washington Post in

2014 reported that local law enforcement agencies participating in the Justice Department’s Equitable Sharing Program retain up to 80% of seized assets.32 Of

Colgan, supra, at 210-11. See also Brent D. Mast, Bruce L.

Benson & David W. Rasmussen, Entrepreneurial Police and Drug

Enforcement Policy, 104 PUB. CHOICE 284 (2000); John L. Worrall,

Addicted to the Drug War: The Role of Civil Asset Forfeiture as

a Budgetary Necessity in Contemporary Law Enforcement, 29 J.

CRIM. JUST. 171 (2001).

Colgan, supra, at 209-10. See also Thomas A. Garrett &

Gary A. Wagner, Red Ink in the Rearview Mirror: Local Fiscal

Conditions and the Issuance of Traffic Tickets, 52 J.L. & ECON. 71

(2009); Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool for Systemic Reform, 58 WM. &

MARY L. REV. 1179 Part I.A. (2017).

See Robert O’Hara, Jr. & Steven Rich, Asset Seizures Fuel

Police Spending, WASH. POST (Oct. 11, 2014), http://www.washingtonpost.

nearly $2.5 billion self-reported monies collected and

spent under the program, the Post calculated that 81%

“came from cash and property seizures in which no indictment was filed.”33 The local law enforcement agencies used these funds for their own purposes without

accountability to local budgeting procedures. For example, out of the nearly $3.4 million spent by the Oklahoma Highway Patrol under this program from July

2009 to June 2012, $1.9 million constituted unallowable and unsupported expenditures relating to salaries,

overtime pay, construction, contractor fees, and the use

of two Ford F-150 pickup trucks by non-law enforcement personnel.34

The Ferguson Report presents an especially disturbing case study of a criminal justice system distorted by an unchecked focus on revenue production.

The Justice Department found that “[t]he City’s emphasis on revenue generation has a profound effect on

[the Ferguson Police Department’s] approach to law

enforcement” and produces “aggressive enforcement of

Ferguson’s municipal code, with insufficient thought

given to whether enforcement strategies promote public safety or unnecessarily undermine community trust

and cooperation.”35

com/sf/investigative/2014/10/11/asset-seizures-fuel-police-spending/

?utm_term=.f5abfdc53077.

Id.

Ferguson Report at 2.

Specifically, the report detailed the City’s longstanding objective to increase “productivity” from municipal fines, to evaluate police officers based on their

volume of traffic citations, to implement higher fines

for high volume offenses, and to prioritize revenue

generation in its justice system.36 For example, the

City prided itself for fining citizens up to $105 for

“Weed/Tall Grass” violations of its code, when other

municipalities charge only $5.37 Police officers competed to see how many citations (i.e., fines) they could

generate from one stop.38 Bond forfeiture practices

imposed undue hardships on individuals, including

prolonged detentions and forfeitures, without any reduction of the outstanding fine.39 The report concludes

that all of these practices disproportionately impacted

African Americans.

Despite the indignity this system wreaked on citizens, the City repeatedly disregarded concerns “about

the impact its focus on revenue has had on lawful police action and the fair administration of justice in

Ferguson.”40 The court’s ability to optimize revenue

generation had been the City’s paramount concern.

The report concluded by demonstrating in shameful

detail how the unchecked focus on revenue generation

Id. at 9-14.

Id. at 10.

Id. at 11, 66.

Ferguson Report at 58-62.

Id. at 14.

resulted in chronic violations of individuals’ rights under the First, Fourth, and Fourteenth Amendments.41

This Court has the opportunity to grant certiorari

and offer guidance regarding the Excessive Fines Clause

to ameliorate such perversions of local criminal justice

systems. In many related contexts, this Court has recognized that the government’s pecuniary interests can

result in constitutional violations. In Connally v. Georgia, this Court struck down a warrant procedure where

the justice of the peace received remuneration for

every warrant issued.42 In Connally, the Court relied

on Tumey v. Ohio, in which the Court struck down a

municipal fine system under which the village mayor

had authority to impose fines and the village received

a share of those fines.43 In Ward v. Village of Monroeville, the Court invalidated a procedure by which sums

produced by a mayor’s court constituted a significant

portion of municipal revenue.44

Similarly, in Marshall v. Jericho, a case challenging the return of certain civil fines to the Employment

Standards Administration, the Court recognized that

financial rewards can impugn prosecutorial discretion.45

In Bearden v. Georgia, the Court considered whether

Id. at 15-78.

429 U.S. 245, 251 (1977).

273 U.S. 510, 532 (1927).

409 U.S. 57, 60 (1972) (explaining the situation offered a

possible temptation to the average man “which might lead him

not to hold the balance nice, clear and true between the State and

the accused”).

446 U.S. 238, 249-50 (1980).

probation may be revoked for failure to pay fines, and

held that the Fourteenth Amendment prohibits revocation in cases where an inmate’s failure to pay was

not willful, but resulted from inability to pay.46 In these

cases, this Court rejected systems corrupted by the influence of pecuniary interests held by the judicial actors.

These previously articulated concerns support

granting certiorari. Recent illustrations such as the

Ferguson Report and findings by The Washington Post

demonstrate that the concerns underpinning this jurisprudence have only increased. The Court’s role in

identifying and eliminating perverse incentives of government is sacrosanct and needed now more than ever.

IV. THE COURT SHOULD GRANT CERTIORARI

TO PROVIDE A NECESSARY AND UNIFORM

CONSTITUTIONAL SAFEGUARD AGAINST

EXCESSIVE FINES.

In light of the threat that unchecked fines, fees,

and forfeitures pose to American criminal justice, the

application of the Excessive Fines Clause to the states

is a pressing issue. Some state courts appear emboldened to use the absence of a decision from this Court

to ignore the constitutional right against excessive

fines and deny citizens an answer whether the Eighth

Amendment protects them.

461 U.S. 660, 672-73 (1983).

This Court should also grant review to clarify that

state courts may not “opt” to refuse to evaluate the

merits of a properly raised federal constitutional defense, and to decide on the merits whether the Eighth

Amendment restricts a state court’s ability to levy excessive fines. Mr. Timbs properly invoked the Excessive

Fines Clause through the Fourteenth Amendment’s

Due Process Clause. Indiana’s highest court declared

it would not determine whether Mr. Timbs had such a

right. The court “opted” not to decide.47 The court articulated a desire to concern itself with rights arising under Indiana’s laws.48 This judicial punt is antithetical

to a citizen’s established right to assert a federal constitutional protection in state court.

Barring waiver or other like circumstances, any

citizen who raises in a state court a federal constitutional right is entitled to a merits decision whether the

right protects the citizen. “Federal law is enforceable

in state courts not because Congress has determined

that federal courts would otherwise be burdened or

that state courts might provide a more convenient forum – although both might well be true – but because

the Constitution and laws passed pursuant to it are as

much laws in the States as laws passed by the state

Petitioners’ App. at 8 (Opinion of the Supreme Court of the

State of Indiana (Nov. 2, 2017)).

Id. at 9 (“Indiana is a sovereign state within our federal

system, and we elect not to impose federal obligations on the State

that the federal government itself has not mandated. . . . [W]e decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under

the Indiana Constitution.”).

legislature.”49 Thus, as the Court stated in Howlett v.

Rose, “[a] state court may not deny a federal right,

when the parties and controversy are properly before

it, in the absence of ‘valid excuse.’ ”50

The absence of definitive law compels not abdication of judicial scrutiny, but its exercise. A state court

ought not to rely on an absence of definitive authority

from this Court or lower federal courts to reject a constitutional right. This Court cannot possibly hope to issue definitive decisions on every constitutional issue

brought to state courts. The absence of a definitive decision compels that state courts such as Indiana examine the right on its merits according to the principles

set forth by this Court in Howlett.

Precisely because this Court has not decided the

issue of incorporation, the Indiana Supreme Court

should have. When it refused to entertain Mr. Timbs’s

constitutional defense, the Indiana Supreme Court

cited no authority permitting its abdication of its responsibility to apply federal law. Rather, its stated rationale to review only state law is invalid according to

long-standing precedent such as Howlett and Miles v.

Illinois C.R. Co. (“[T]he Federal Constitution makes

the laws of the United States the supreme law of the

land, binding on every citizen and every court and

Howlett v. Rose, 496 U.S. 356, 367 (1990).

Id. at 370 (citing Douglas v. New York, N. H. & H. R. Co.,

279 U.S. 377, 387-88 (1929) (Holmes, J.)).

enforceable wherever jurisdiction is adequate for the

purpose.”).51

Similarly, in McKnett v. St. Louis & S. F. R. Co.,

this Court held that a state court may not discriminate

against rights arising under federal law.52 In McKnett,

the Alabama court had denied jurisdiction over a claim

“based solely upon the [federal] source of law sought to

be enforced.”53 This Court reversed the state court,

stating that a plaintiff may not be “cast out because he

is suing to enforce a federal act.”54 Similarly, Mr.

Timbs’s defense predicated on the Constitution may

not be cast out because he raised it in state court. The

approach of the Indiana Supreme Court represents

a dereliction of judicial duty and contradicts the wellestablished reach of the Constitution.

As in Indiana, Montana’s highest court has offered

no justification for dismissing out of hand an assertion

of rights under the Eighth Amendment’s Excessive

Fines Clause. In Montana, a defendant subject to

forfeiture of his vehicle asserted the Eighth Amendment.55 The Montana Supreme Court chastised the defendant for not asserting the Montana Constitution,

and stated without any analysis that it “declined” to

hold that the Eighth Amendment “is applicable in

315 U.S. 698, 704 (1942).

292 U.S. 230 (1934).

Id. at 234.

Id.

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

783 (Mont. 2009).

Montana, when the federal courts have not done so.”56

On this latter point, the Montana Supreme Court was

wrong. Two federal circuits prior to 2009 had held that

the Eighth Amendment applied to the states.57 But regardless, in the absence of binding precedent to the

contrary, state courts have an independent duty to interpret and enforce the Constitution.

Michigan’s lower appellate courts have also ignored assertions of the Eighth Amendment, while analyzing the state equivalent using federal principles.

In 1996, the Michigan Court of Appeals noted that the

U.S. Supreme Court had never decided whether the

Excessive Fines Clause of the Eighth Amendment applies to the states.58 That court proceeded to analyze

whether the fine was excessive under the state constitution, relying on federal case law to do so.59 Subsequently, Michigan’s appellate courts have followed

this approach, deferring on the Excessive Fines Clause

of the Eighth Amendment without valid excuse, but

Id.

See Qwest Corp. v. Minnesota Public Utilities Commission,

427 F.3d 1061, 1069 (8th Cir. 2005) (Excessive Fines Clause applies to states); Wright v. Riveland, 219 F.3d 905, 914 (9th Cir.

2000) (same); see also Broussard v. Par. of Orleans, 318 F.3d 644,

652 (5th Cir. 2003) (assuming Excessive Fines Clause applies to

states).

In re Forfeiture of $25,505, 560 N.W.2d 341, 347 (Mich. Ct.

App. 1996).

Id.

employing the state equivalent and acknowledging its

similarity to the federal protection.60

This Court has rejected as a valid excuse “[t]he

fact that a state court derives its existence and functions from the state laws.”61 This Court held in Second

Employers’ Liability Cases, that such an excuse “is no

reason why [a state court] should not afford relief ” under federal law, reasoning that the state court “is subject also to the laws of the United States, and is just as

much bound to recognize these as operative within the

State as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the State. . . .”62

This Court has thus rejected as a legitimate rationale that a state may confine its review to state law

issues because the state funds the court system. “An

excuse that is inconsistent with or violates federal law

is not a valid excuse: the Supremacy Clause forbids

state courts to dissociate themselves from federal law

because of disagreement with its content or a refusal

See In re Forfeiture of 5118 Indian Garden Rd., 654 N.W.2d

646, 648-49 (Mich. Ct. App. 2002) (“These factors dovetail, to a

certain extent, with the United States Supreme Court’s statement

in United States v. Bajakajian, 524 U.S. 321, 337 (1998). . . .”); People v. Antolovich, 525 N.W.2d 513, 515 (Mich. App. 1994) (declining

to determine whether the fine violated the Eighth Amendment of

the United States Constitution, but invalidating the fine as excessive under the state constitution).

Second Employers’ Liability Cases, 223 U.S. 1, 58 (1912).

Id. at 58.

to recognize the superior authority of its source.”63

This case presents an infrequent yet serious rebellion

against the jurisprudential system this Court recognized in Second Employers’ Liability Cases. This Court

should take review to enforce the holdings and rationales of Second Employers’ Liability Cases and Howlett.

In “selective incorporation” and due process cases,

this Court ordinarily reviews a lower court decision

that undertook a legal analysis whether the asserted

constitutional right applies.64 Here, this Court has no

analysis to review because the Indiana Supreme Court

Howlett, 496 U.S. at 371.

See, e.g., Edwards v. South Carolina, 372 U.S. 229, 238

(1963), rev’g State v. Edwards, 123 S.E.2d 247 (S.C. 1961) (holding

that the breach of the peace was punishable and outside the scope

of the defendants’ assertion of constitutional rights under the

Federal Constitution); Cantwell v. Connecticut, 310 U.S. 296, 303

(1940), rev’g State v. Cantwell, 8 A.2d 533 (Conn. 1939) (evaluating the challenged statute on the merits under the Establishment

Clause asserted through the Fourteenth Amendment); Palko v.

Connecticut, 302 U.S. 319, 329 (1937), aff ’g State v. Palko, 191 A.

320 (Conn. 1937) (“As the claim of the accused raises questions as

to rights secured under the provisions of the Constitution of the

United States, we look to the decisions of the Supreme Court of

the United States for guidance as to the proper construction of

these provisions.”), rev’d on other grounds by Benton v. Maryland,

395 U.S. 784 (1969); De Jonge v. Oregon, 299 U.S. 353, 364 (1937),

rev’g State v. De Jonge, 51 P.2d 674 (Or. 1935) (performing a legal

analysis regarding the federal right to assembly and distinguishing prior federal authorities to hold the statute constitutional);

Gitlow v. New York, 268 U.S. 652, 666 (1925), aff ’g People v. Gitlow,

195 A.D. 773 (N.Y. App. Div. 1921) (addressing on the merits application of freedom of speech and of the press guaranteed by the

First Amendment under the Fourteenth Amendment to the challenged state statute).

refused to conduct one. In addition to the glaring error

of leaving a properly raised constitutional right unresolved, this approach undermines the Court’s review

function, improperly forcing onto this Court a burden

to grant certiorari or leave unaddressed a citizen’s

properly asserted constitutional defense.

No justification supports the state court’s abdication of its responsibility to administer the laws not just

of Indiana, but of the United States. This Court should

grant certiorari in order to consider and reject the dismissive, unconstitutional methodology of the Indiana

high court.

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

CONCLUSION

The Court should grant certiorari to resolve the issue of incorporation of the Excessive Fines Clause of

the Eighth Amendment and establish uniformity of

judicial approach. As discussed in detail above, the imposition of fees, fines, and forfeitures has risen dramatically in recent years, leading states across the country

to permit aggressive policing practices of dubious constitutionality.

The Court has remarked that new criminal justice

cases will assist the judiciary to expose “old infirmities

which apathy or absence of challenge has permitted to

stand.”65 The petition for certiorari offers this Court an

opportunity to do just that by addressing infirmities

Williams v. Illinois, 399 U.S. 235, 245 (1970).

with which this Court has yet to reckon. Guidance from

this Court will improve the functioning of both state

and federal courts and resolve an issue of tremendous

significance to the criminal justice system.

The petition should be granted.

Respectfully submitted,

CLARK M. NEILY III

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

Tel: 202.842.0200

cneily@cato.org

jschweikert@cato.org

SAMUEL BROOKE

THE SOUTHERN

POVERTY LAW CENTER

400 Washington Ave.

Montgomery, AL 36104

Tel: 334.956.8200

samuel.brooke@splcenter.org

AVERIL B. ROTHROCK*

CLAIRE L. ROOTJES

SCHWABE, WILLIAMSON

& WYATT, P.C.

1420 5th Ave., Suite 3400

Seattle, WA 98101

Tel: 206.622.1711

arothrock@schwabe.com

crootjes@schwabe.com

*Counsel of Record

Counsel for Amici Curiae

Dated: March 5, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.