# Amicus Curiae Brief — Timbs v. Indiana, 139 S. Ct. 45 (2018) (No. 17-1091)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 17-1091
RR

IN THE
Supreme Court of the United States

TYSON TIMBS AND A 2012 LAND ROVER LR2,

Petitioners,
v.

STATE OF INDIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE
INDIANA SUPREME COURT

BRIEF OF THE CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA AS
AMICUS CURIAE SUPPORTING

PETITIONERS
DARYL JOSEFFER BERT W. REIN
MICHAEL B. SCHON Counsel of Record
U.S. CHAMBER CAROL A. LAHAM
LITIGATION CENTER, INC. ANDREW G. WOODSON

1615 H Street NW WILEY REIN LLP
Washington, DC 20062 1776 K Street NW
(202) 463-5337 Washington, DC 20006

(202) 719-7000

brein@wil .

September 11, 2018
Counsel for Amicus
Curiae

.
-l-

TABLE OF CONTENTS
Page
TABLE OF CITED AUTHORITIES ......................... iii
INTEREST OF AMICUS CURIAE............................. 1
INTRODUCTION AND SUMMARY OF THE
FITS RTA SCR 2
ee iideateinettiineinicaiieetnimmememinnnecnee 4
I. Eighth Amendment Review of State
Forfeitures and Fines Is a Constitutionally
Necessary Check on Abuse. .............................. 4
A. The Excessive Fines Clause Is Precisely
the Type of Constitutional Provision
That Should Be Incorporated. ............... 4
B. Incorporating the Excessive Fines
Clause Will Prevent Indiana, and Other
States, from Ignoring an Essential!
Element of Ordered Liberty................. 10
II. The Unchecked Proliferation of

Disproportionate Forfeitures and Revenue-

CEE EEE EEE EE EEE EEE EEE EEE EEE EE EEE EEE EEE EEE EEE EERE EEE REET

-ii-

TABLE OF CONTENTS
(continued)

Page

B. Governments Are Increasingly Misusing
Mandatory Forfeitures and Fines as
Revenue Streams Rather Than as
Proportionate Punishments for

Uncertainty Surrounding Whether They

Ill. As under Federal Law, This Court Should
Hold That a State or Local Fine Is Excessive
under the Eighth Amendment When It Is
Disproportionate to the Harm Caused by the
I cnntencniennninrctnsinuctiemmnnnes 25

ee 27

-lii-

TABLE OF CITED AUTHORITIES

Austin v. United States,

Re Se ED cxccececccecssecssensensencesesecees

Baze v. Rees,

EB Tr
Browning-Ferris Industries of Vermont, Inc.

v. Kelco Disposal, Inc.,

492 U.S. 257 (1988) ................0....cscesceeseesees

Cantwell v. State of Connecticut,

310 U.S. 206 (1940) ..............0ccccesesseeseeeeeeees

Cooper Industries, Inc. v. Leatherman
Tool Group, Inc.,

es ID cecceccssnnscrssesuseuecencensees

Ewing v. California,

C—O ae

Harmelin v. Michigan

5O1 U.S. 957 (1991) ooccccccccccsscooeeesssseeeeeeeseee

Ingraham v. Wright,

ee

In re Kemmler,

ED Ce SP IID cnccscsccrecsuvevecrnsemmesmnnanes

Page(s)

-iv-

TABLE OF CITED AUTHORITIES

(continued)
Page(a)

Kennedy v. Louisiana, 554 U.S. 407, as modified on

denial of reh’g, 554 U.S. 945 (2008)...................... 9
Levine v. United States,

8 ee 9
McDonald v. City of Chicago, Illinois,

Ee 2,4
Miller v. Alabama,

ene aoe 9
Prince v. City of New York,

tL eee 17
Robb v. Connolly,

5 TNE me 9
Robinson v. California,

eee 2
Roper v. Simmons,

ne 8
Russello v. United States,

ee 11
Schilb v. Kuebel,

GG WE . BIRe GG Bp ccccccecncsesecessccssscsvessccecces.ccssseneses 2

-V-

TABLE OF CITED AUTHORITIES

(continued)
Page(s)

Solem v. Helm,

LL Tn 7, 10, 26
United States v. Bajakajian,

ae 1, 25, 27
Weems v. United States,

4 a 4, 26
West Virginia State Board of Education v. Barnette,

EE EE eae eT ar 27
Other Authorities

Alisa Hauser, City Slaps Fines on Businesses for
Putting Signs on Windows Without Permits,
DNAInfo.com (July 28, 2017)......................cccc00000 19

Alisa Hauser and Tanveer Ali, As Sign Violations
Spike, “Erratically Enforced” Law Questioned,
DNAInfo.com (Sept. 11, 2017) ....................00000000 19

Andrew M. Kenefick, The Constitutionality of
Punitive Damages Under the Excessive Fines
Clause of the Eighth Amendment,

85 Mich. L. Rev. 1699 (1987) .....................00...00000 4

Anthony Noto, L’/PS Vows to Fight $247M Penalty
for Shipping Untaxed Cigarettes,
New York Business Journal (May 26, 2017)....... 14

-vi-

TABLE OF CITED AUTHORITIES
(continued)

Page(s)

April Leachman, When It Come to Sign Violations in
Chicago, It’s All About the Dollar Signs,
ChicagoNow.com (Sept. 11, 2017)....................... 19

Barnini Chakraborty, Despite Promises to Cut Back,
Fed and State Governments Press Asset
Forfeitures, Fox News, Jan. 30, 2018 .................. 13

Brief for Amicus Curiae Chamber of Commerce of the
United States of America in Support of Petitioner,
Endo Pharmaceuticals v. New Hampshire, No. 17-
— s § , E 13, 15

Cesare Bonesana-Beccaria, An Essay on Crimes and
TE 5

David Pimentel, Forfeitures and the Eighth
Amendment: A Practical Approach to the
Excessive Fines Clause as A Check on Government
Seizures,

11 Harv. L. & Pol’y Rev. 541 (2017) .............. 13, 14

David J. Stone, The Opportunity of Austin v. United
States: Toward A Functional Approach to Civil
Forfeiture and the Eighth Amendment,
jp SS Fe 12

Eric Blumenson & Eva Nilsen, Policing for Profit:
The Drug War’s Hidden Economic Agenda,
65 U. Chi. L. Rev. 35 (1998)........................... 12-13

TABLE OF CITED AUTHORITIES
(continued)

Page(s)

Erin Durkin, Newkirk Plaza Merchants Hit with
Fines as de Blasio Pushes City to Ease Up on
Small Businesses, N.Y Daily News,

Fk RES ae tA RR a OC 17

James Peltz, Los Angeles Seeks $1.45 Million from
Carl’s Jr. for Alleged Minimum Wage Violations,
Los Angeles Times (June 26, 2017) ..................... 18

Jennifer Henderson, Coastal Carolina Diner Sues
State Agency over Workers’ Comp Fines, Triangle
Business Journal (June 26, 2017......................... 20

Jessica Dye, NY Public Advocate Slaps City with
Lawsuit over Fines, Reuters, July 26, 2012 ...... 17

John Terzaken & Pieter Huizing, Allen & Overy,
How Much Is Too Much? A Call for Global
Principles to Guide the Punishment of
International Cartels (Spring 2013).............. 23-24

Kristen Beckman, Penalty for Lapsed Comp Coverage

Was Excessive, Court Rules, Business Insurance
a AE RI AP ars ee es 20

L. Stuart Ditzen, Are Punitive Damage Awards Too
Punishing?, Phila. Inquirer, Oct. 29, 1989.......... 24

L. S. Sealy and R J A Hooley, Commercial Law:
Text, Cases and Materials (5th ed. 2003)........... 25

-Vill-

TABLE OF CITED AUTHORITIES

(continued)
Page(s)
Less runitive Damages, Wash. Post,
SR SRE EP 22

Letter from Ohio Chief Justice Maureen O’Connor to
State Judges Wan. 29, 2018)..................cc cc ccce eee 21

Louis S. Rulli, Seizing Family Homes from the
Innocent: Can the Eighth Amendment Protect
Minorities and the Poor from Excessive
Punishment in Civil Forfeiture? 19 U. Pa. Const.
Bae Ee CETTE onicachicatininiunidncienbiiaernbemadaal 5, 7, 16, 17

Melissa Etehad, Small Business Owners in Flushing
Say the City Unfairly Targets Them, TheInk.NYC
SURE: Ti IIIT iucsitssidendndipinibinlinamiaiiidataneteiinamennaibionas 18

Michael K. Block, Optimal Penalties, Criminal Law
and the Control of Corporate Behavior,
Pe ee 24

Nicholas M. McLean, Livelihood, Ability to Pay, and
the Original Meaning of the Excessive Fines
Clause, 40 Hastings Const. L.Q. 833
SEI dinisdiinabnetismiataabsisiningehienerinadeddlianinismeseiaundnes 7, 8, 21

Office of Bill de Blasio, Report de Blasio: City
Budgets Drowning Small Businesses in Frivolous
Sy I I icici neeticeanstinbinasemssetinlen 18

-1x-

TABLE OF CITED AUTHORITIES

(continued)
Page(s)
Patrick Henry, Debate in Virginia Ratifying
Convention (June 16, 1788)................-...c00cceeeeeee000s 6

Robert O. Dawson, Sentencing Reform: The Current
Round Toward a Just and Effective Sentencing
System: Agenda for Legislative Reform. by Pierce
O'Donnell, Michael J. Churgin & Dennis E.
Curtis. New York: Praeger Publishers, 1977. pp
xvi, 88 Yale L.J. 440 (1978)...............-22-.2.2.---- 11, 12

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.

United States Chamber Institute for Legal Reform,
Constitutional Constraints: Provisions Limiting
Excessive Government Fines (Oct. 2015) .14, 15, 16

United States Chamber Litigation Center,
Grady v. Hunt County, Tezas......................--...---. 15

United States, Small Business Administration, Office
of Advocacy, Small Business Profile: Indiana.....24

he

INTEREST OF AMICUS CURIAE'!

The Chamber of Commerce of the United States
of America (“Chamber’) is the world’s largest business
federation. It represents 300,000 direct members and
indirectly represents the interests of more than three
million businesses and professional organizations of
every size, in every sector, and from every geographic
region of the country. An important function of the
Chamber is to represent the interests of its members
in matters before Congress, the Executive Branch,
and the courts. To that end, the Chamber regularly
files amicus curiae briefs in cases that raise issues of
concern to the nation’s business community.

The Chamber and its members have a strong
interest in ensuring a fair and predictable legal
environment across the United States.
Unfortunately, and with increasing frequency, state
and local legislatures are authorizing — and executive
officials are seeking — excessive fines and forfeitures”
for relatively modest violations of the law by
businesses and individuals. While the Eighth

' Counsel of record for all parties received timely notice of the
intent to file this brief and consented to the filing of the brief. S.
Ct. R. 37(@2)(a). No counsel for any party authored this brief in
whole or in part, and no person or entity other than amicus
curiae or its counsel made a monetary contribution intended to
fund the briefs preparation or submission.

2 Under this Court's Excessive Fines Clause jurisprudence,
“[florfeitures—payments in kind—are ... ‘fines’ if they constitute
punishment for an offense.” United States v. Bajakajian, 524
U.S. 321, 328 (1998).

-2.

Amendment's Excessive Fines Clause restricts
excessive fines arising under federal law, some
jurisdictions’ failure to apply that constraint to state
and local governments is needlessly driving up costs
for businesses, increasing prices for consumer goods
and services, and undermining economic growth. The
Chamber thus has a particular interest in ensuring
that the Excessive Fines Clause is held applicable to
the States.

INTRODUCTION AND
SUMMARY OF THE ARGUMENT

The Eighth Amendment prohibits “excessive
sanctions.” Atkins v. Virginia, 536 U.S. 304, 311
(2002) (internal quotation marks omitted). In a series
of twentieth-century opinions, the Supreme Court
held much of the Bill of Rights applicable to the
States, including two-thirds of the Eighth
Amendment's guarantees against excessiveness. See
Robinson v. California, 370 U.S. 660, 675 (1962)
(prohibiting cruel and unusual punishments); Schilb
v. Kuebel, 404 U.S. 357, 365 (1971) (prohibiting
excessive bail). Consistent with these decisions, this
Court affirmatively stated in 2001 that the “Due
Process Clause . . . makes the Eighth Amendment's
prohibition against excessive fines . . . applicable to
the States” as well. Cooper Indus., Inc. v. Leatherman
Tool Grp., Inc., 532 U.S. 424, 433-34 (2001). But a
footnote in a more recent decision, McDonald v. City
of Chicago, Illinois, 561 U.S. 742, 765 n.13 (2010),
unsettled the issue by suggesting that the Court has
yet to decide whether the Excessive Fines Clause
applies to the States.

-3-

The case currently before the Court
underscores why Cooper Industries was correct. And
the disproportionate and punitive forfeiture in
Petitioner’s case is hardly unique. Across the country,
state and local prosecutors are targeting large and
small businesses for similar treatment. Newspapers
and legal literature from the 1980s forward are
replete with examples of large fines being handed out
for even the most inconsequential violations — at great
cost to businesses and their customers.

Many of the same excesses that originally led
to the federal constitutional prohibition are thereby
presenting themselves forcefully in states that have
not recognized the Clause’s incorporation. And often,
state and local prosecutors have pursued excessive
sanctions for the government's financial benefit
rather than meting out justice fairly and
proportionately to the harm caused by the underlying
offense.

The solution to this problem is straightforward.
The Founders recognized the judiciary as the last line
of defense against legislative excess and overzealous
prosecution. This Court should embrace the judicial
branch’s role in reviewing fines and other monetary
sanctions for excessiveness. Cooper Industries’
conclusion should be reaffirmed, and the Eighth
Amendment's Excessive Fines Clause and its concept
of proportionality should be held applicable to the
States.

”
ARGUMENT

I. EIGHTH AMENDMENT REVIEW OF
STATE FORFEITURES AND FINES IS A
CONSTITUTIONALLY NECESSARY
CHECK ON ABUSE.

A. The Excessive Fines Clause Is
Precisely the Type of Constitutional
Provision That Should Be

Incorporated.

Individual components of the Bill of Rights are
incorporated against the States where a provision is
“fundamental to our scheme of ordered liberty” or
where the right is “deeply rooted in this Nation's
history and tradition.” McDonald, 561 U.S. at 767
(citation omitted); see also Cantwell v. State of
Connecticut, 310 U.S. 296, 303 (1940). Both are true
here.

It is a basic “precept of justice that punishment
for crime should be graduated and proportioned to
[the] offense.” Weems v. United States, 217 U.S. 349,
367 (1910). In fact, this “enduring principle” was long
ago embedded into the Magna Carta, Andrew M.
Kenefick, The Constitutionality of Punitive Damages
Under the Excessive Fines Clause of the Eighth
Amendment, 85 Mich. L. Rev. 1699, 1716 (1987), and
reaffirmed by key thought leaders during The
Enlightenment. While the “sovereign’s right to
punish crimes is founded . . . upon the necessity of
defending the public liberty,” Cesare Bonesana-
Beccaria wrote in his quintessential work on crime,
the “punishments [must be] just in proportion as the

-5-

liberty, preserved by the sovereign, is sacred and
valuable.” Cesare Bonesana-Beccaria, An Essay on
Crimes and Punishments, at 17 (1872 ed.).*

The Founders learned lessons from the past,
when these principles were not resolutely entrenched
into law. As a result, a “primary focus” of their efforts
in drafting the Constitution and Bill of Rights “was
the potential for governmental abuse of its
‘prosecutorial power.” Browning-Ferris Indus. of
Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266
(1989). Based on past abuses, the Founders wanted a
clear limit on “the ability of the sovereign to use its
prosecutorial power, including the power to collect
fines, for improper ends.” /d. at 267. Among other
models, the Founders turned to the English Bill of
Rights of 1689, which was designed “to curb the
excesses of [17th century] English judges” who were
imposing “partisan” and “heavy fines on the King’s
enemies.” /d.

Against this general background, the Framers
of the Bill of Rights lifted the Eighth Amendment
“almost verbatim, from a provision of the Virginia
Declaration of Rights of 1776, which in turn derived

3 http: //if-

oll. s3.amazonaws.com/titles/2 193/Beccaria_1476_Bk_ pdf.
Notably, “Beccaria’s writings materially informed the Founding
Fathers’ attitudes and views of the provisions of the federal Bull
of Rights.” Louis S. Rulli, Seizing Family Homes from the
Innocent: Can the Eighth Amendment Protect Minorities and the
Poor from Excessive Punishment in Civil Forfeiture?, 19 U. Pa Jd.
Const. L. 1111, 1113 n2 (nternal quotations and brackets
omitted) ( Excessive Punishment in Cwil Forfeiture’).

-6-

from the [aforementioned] English Bill of Rights of
1689.” Ingraham v. Wright, 430 U.S. 651, 664 (1977).

While Congress did not debate the Eighth
Amendment's language directly to any meaningful
extent in 1791, see Browning-Ferris, 492 U.S. at 264,
contemporary advocates spoke out and wrote
approvingly about its principles. For example, during
the original Virginia Ratifying Convention in 1788,
Patrick Henry argued that it would “depart from the
genius of your country” to adopt a Constitution
without a restriction on excessive fines. Patrick
Henry, Debate in Virginia Ratifying Convention,
(June 16, 1788). “[W]hen we come to punishments,”
Henry continued, “no latitude ought to be left [to
legislatures to] . . . define punishments without this
control.” Jd. A prominent pre-ratification author
likewise linked the importance of placing
excessiveness-related constraints on both the federal
and state governments:

For the security of liberty it has been
declared, “that excessive bail should
not be required, nor excessive fines

general government as under that of
the individual states; for the power of
the former is as complete to the
purpose of requiring bail, imposing

‘ http://press-pubs. uchicago.edu/founders/documents/amend
VIlIs13. html

-7-

fines, inflicting punishments, . . . and

seizing . . . property . . . as the other.
Louis S. Rulli, Excessive Punishment in Ciwil
Forfeiture, 19 U. Pa. J. Const. L. at 1115 (quoting
Brutus II (Nov. 1, 1787), as reprinted in The Complete
Bill of Rights 621 (Neil H. Cogan, ed., 1997)).

Given this “traditional understanding of
protection from excessive fines as inherent in English
fundamental law, and in light of the fact that
protections against ‘excessive fines’ are among the
most ancient rights of the Anglo-American legal
tradition, it can scarcely be argued that such rights
are not ‘deeply rooted in this Nation’s history and
tradition.” Nicholas M. McLean, Livelihood, Ability
to Pay, and the Original Meaning of the Excessive
Fines Clause, 40 Hastings Const. L.Q. 833, 875 (2013)
(citation omitted); see also Solem v. Helm, 463 U.S.
277, 284-88, 313 (1983) (observing that the
“constitutional principle of proportionality has been
recognized explicitly in this Court for almost a
century”).

Historic support for incorporation is also
quantifiable. By 1791, the constitutions of Delaware,
Georgia, Maryland, Massachusetts, New Hampshire,
North Carolina, Pennsylvania, and Virginia a!!
contained prohibitions on excessive fines, as did the
Northwest Ordinance of 1787. Nicholas M. McLean,
Livelihood, Ability to Pay, and the Original Meaning
of the Excessive Fines Clause, 40 Hastings Const. L.Q.
at 876. And by the year the Fourteenth Amendment
was adopted, 35 states — accounting for nearly 92% of
the population — had incorporated their own version

-8-

of an excessive fines prohibition into their
constitutions. 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).°

This is why, as Petitioners detailed in their
brief petitioning for a writ of certiorari (at 13-18 &
n.5), many state and federal courts have concluded
that it is “beyond serious dispute” that the Excessive
Fines Clause applies to the States — particularly so
given this Court's past statements to this effect. Just
four years after seven justices signed onto the opinion
in Cooper Industries, the Court reaffirmed in Roper v.
Simmons, 543 U.S. 551, 560, 589 (2005), that the
entirety of the Eighth Amendment “is applicable to
the States through the Fourteenth Amendment.” And
in 2008, the Court again held that 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”
— including the Excessive Fines Clause — and that “all

® In fact, prior to the Fourteenth Amendment, one prominent
author had even argued for applying the Eighth Amendment's
ban on excessive fines to the States of its own force. In his 1825
treatise, Wilham Rawle wrote that the prohibition on excessive

-9-

persons within those respective jurisdictions may
invoke its protection.” Kennedy v. Louisiana, 554 U.S.
407, 412, 419, as modified on denial of reh’g, 554 U.S.
945 (2008). Other justices’ individual opinions also
have referred back to the Excessive Fines Clause’s
incorporation post-Cooper Industries.®

Discerning excessiveness is a vital judicial
function. A hallmark of the American constitutional
system is the creation of “an independent judiciary
[as] the ultimate reliance of citizens in safeguarding
rights guaranteed by the Constitution” over and
beyond the legislative and executive branches. Levine
v. United States, 362 U.S. 610, 616 (1960). This Court
long ago recognized “the duty of the courts to adjudge
such penalties to be within the constitutional
prohibition” of the Eighth Amendment. In re
Kemmler, 136 U.S. 436, 446 (1890). In fact, “by
broadly prohibiting excessive sanctions, the Eighth
Amendment [actually] directs judges to exercise their
wise judgment in assessing the proportionality of all
forms of punishment.” Ewing v. California, 538 U.S.
11, 32-35 (2003) (Stevens, J., dissenting). And this
Court has made clear that the responsibility lies
“[{ujpon the state courts, equally with the courts of the
Union, . . . to guard, enforce, and protect every right
granted or secured by the constitution of the United
States.” Robb v. Connolly, 111 U.S. 624, 637 (1884).

’ See, e.g., Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality); Miller
v. Alabama, 567 U.S. 460, 503 (2012) (Thomas, J., dissenting).

-10-

B. Incorporating the Excessive Fines
Clause Will Prevent Indiana, and
Other States, from Ignoring an
Essential Element of Ordered
Liberty.

“The purpose of the Eighth Amendment .. . was
to limit the government’s power to punish,” with the
Excessive Fines Clause forming an integral part of the
Amendment’s three-part framework by “limit[ing] the
government's power to extract payments, whether in
cash or in kind, ‘as punishment for some offense.”
Austin v. United States, 509 U.S. 602, 609-10 (1993)
(quoting Browning—Ferris, 492 U.S. at 265). It “would
be anomalous indeed” if other sanctions under the
Eighth Amendment were subject to review under
federal constitutional principles but excessive fines
were not. Solem, 463 U.S. at 289.

As detailed below, state and local prosecutors
have sought to extract grossly disproportionate fines
from disfavored or unpopular parties — like large
corporations — who presumably have the resources to
pay, rather than seeking sanctions in proportion to
the harms caused by their actions. But such schemes,
unbound to fundamental constitutional principles of
proportionality, defeat the broader goals behind the
Eighth Amendment and this Court's decision to
incorporate its other clauses against the States. This
Court should not allow overzealous prosecutors or
legislators to effectively do away with fundamental
constitutional rights.

-11-

Il. The Unchecked Proliferation of
Disproportionate Forfeitures and
Revenue-Seeking Fines Undermines
Economic Growth.

A. Mandatory Forfeitures Are

Increasingly Common and
Problematic.

Penalty statutes — and in particular here,
statutes imposing fines and forfeitures — are often
drafted with the worst prospective offender in mind.
As commentators have noted, penalty amounts have
“tended to be quite high because legislatures have
used a ‘worst case’ mentality in setting them.” Robert
O. Dawson, Sentencing Reform: The Current Round
Toward a Just and Effective Sentencing System:
Agenda for Legislative Reform. by Pierce O'Donnell,
Michael J. Churgin & Dennis E. Curtis. New York:
Praeger Publishers, 1977. pp. xvi, 88 Yale L.J. 440,
442 (1978) (“Sentencing Reform”). For example, in the
early 1970s, Congress passed legislation, including
the Racketeer Influenced and Corrupt Organizations
Act, which authorized forfeiture of property connected
to the criminal enterprise. These laws — and other
statutes like them in the years since — were an
“extraordinary weapon” against those who had
significant involvement in organized crime, but they
did not take into account the unfairness that such
“drastic” measures would have against others with
less culpability. Russello v. United States, 464 U.S.
16, 27 (1983) (quoting 16 Cong. Rec. 819 (1970)).

The responsibility for reviewing fines to ensure
that they are not grossly disproportionate to the

-12-

alleged wrongdoing lies principally with the judiciary.
In fact, legislatures rely upon trial judges “to mitigate
the severity of punishment in the great majority of
cases.” Robert O. Dawson, Sentencing Reform, 88
Yale L.J. at 442. And a key part of that analysis in
many jurisdictions is the Excessive Fines Clause.

Incorporation of this provision imposes a duty
on state courts to go beyond whether a fine is
authorized under state law and ask whether it is
appropriate in the actual circumstances before the
court. Without this additional check, the resultant
financial penalties can offend basic notions of fairness
and over-compensate for the conduct the legislature
was attempting to prevent in the first place.

B. Governments Are Increasingly
Misusing Mandatory Forfeitures
and Fines as Revenue Streams
Rather Than as Proportionate
Punishments for Particular
Offenses.

Fines and related forfeitures are on the rise in
America, as are state and local government’s reliance
on — and abuse of — such enforcement mechanisms.
See, e.g., David J. Stone, The Opportunity of Austin v.
United States: Toward a Functional Approach to Civil
Forfeiture and the Eighth Amendment, 73 B.U. L. Rev.
427, 429-30 (1993). In 1991, a Justice Department
memorandum observed that “state and local law
enforcement agencies were becoming increasingly
dependent upon equitable sharing of forfeiture
proceeds,” with nearly $1.4 billion in assets
transferred to the agencies as of 1994. Eric

13.

Blumenson & Eva Nilsen, Policing for Profit: The
Drug War's Hidden Economic Agenda, 65 U. Chi. L.
Rev. 35, 64 (1998). By 2017, “[florfeitures,
particularly civil forfeitures, have become a powerful
tool for the Department of Justice, as well as for local
law enforcement agencies,” with dollar amounts far
exceeding totals from the 1990s. David Pimentel,
Forfeitures and the Eighth Amendment: A Practical
Approach to the Excessive Fines Clause as a Check on
Government Seizures (“Forfeitures”), 11 Harv. L. &
Pol'y Rev. 541, 541-42 (2017).

For their part, local officials now openly boast
about their profit-making enterprises and engage
contingent fee private attorneys to pursue them. See,
e.g., Br. for Amicus Curiae Chamber of Commerce of
the United States of America in Support of Petitioner,
Endo Pharmaceuticals v. New Hampshire, No. 17-633
(U.S. Nov. 30, 2017).7 In fact, a “national study found
60 percent of the 1,400 municipal and county agencies
surveyed across the country relied on forfeiture profits
as a ‘necessary part of their budget.” Barnini
Chakraborty, Despite Promises to Cut Back, Fed and
State Governments Press Asset Forfeitures, Fox News,
Jan. 30, 2018.8 The Las Cruces, New Mexico city
attorney bragged that, through civil forfeitures:

’ http://www.chamberlitigation.com/sites/default/files/cases/file
8/17171717/U.S.%20Chamber%20A micus%20Brief™®20--
%20Endo%20Pharmaceuticals%20I nc. %20v.%20New%20Hamp
shire%20%28U .S.%20Supreme%20Court%29. pdf.

® http://www. foxnews.com/politics/20 18/0 1/30/despite-promises-
to-cut-back -fed-and-state-governments-press-asset-
forfeitures. htmL

.14-

“We could be czars. We could own the
city. We could be in the real estate
business.” He detailed how police
targeted nice vehicles and other
desirable assets, but that they should
pursue bigger fish: “This is a gold
mine! A gold mine! You can seize a
house, not a vehicle!”

David Pimentel, Forfeitures, 11 Harv. L. & Pol’y Rev.
at 550.

Not only are the fines and forfeitures sought by
state and federal governments massive in the
aggregate, but the fines on a case-by-case are equally
as staggering, sometimes reaching “into the billions of
dollars against a single entity.” U.S. Chamber
Institute for Legal Reform, Constitutional
Constraints: Provisions Limiting Excessive
Government Fines at 1 (Oct. 2015).9 For example, the
State of New York and the City of New York recently
sought $872 million in penalties — and were awarded
$247 million — against UPS because a small number
of sellers used UPS's services to ship untaxed
cigarettes. Anthony Noto, UPS Vows to Fight $247M
Penalty for Shipping Untaxed Cigarettes in New York,
New York Business Journal (May 26, 2017).'° At the
opposite end of the country, Hunt County, Texas hired
private attorneys who sought approximately $2 billion

® http://www. instituteforlegalreform.com/uploads/sites/1/Cons
titutionalConstraints_web.pdf.

‘0 https://www.bizjournals.com/newyork/news/2017/05/26/ups-
vows-to-fight-247m-penalty. html

-15-

in fines from a landowner for improperly storing a pile
of wood on his property. See U.S. Chamber Litigation
Ctr., Grady v. Hunt Cty., Texas.'' In other examples,
Arkansas and Louisiana retained private counsel to
pursue aggressive claims against a Johnson &
Johnson subsidiary, initially resulting in $1.2 billion
and $330 million verdicts. See Br. for Amicus Curiae
Chamber of Commerce of the United States of
America in Support of Petitioner, Endo
Pharmaceuticals v. New Hampshire at 11.
Ultimately, these verdicts were overturned and the
States recovered nothing, but the final result in these
two cases does not diminish the impact and enormity
of the penalties that state and local governments are
seeking via these types of cases. See id.

Moreover, business entities are frequently
subject to multiple fines by different government
actors for the same conduct. U.S. Chamber Institute
for Legal Reform, Constitutional Constraints:
Provisions Limiting Excessive Government Fines, at 1.
For example, the South Carolina Supreme Court
recently upheld a $124 million civil penalty award in
a case brought by the South Carolina Attorney
General against Johnson & Johnson for the same
purported misconduct regarding a drug that was
already the subject of the company’s $2.2 billion
settlement with the federal government. /d. at 5. “If
the other 49 states followed South Carolina’s lead, it

‘| http:/Awww.chamberlitigation.com/cases/grady-v-hunt-
county-texas.

-16-

would amount to over $6 billion in civil fines on top of
the federal government's $2.2 billion settlement.” /d.

Fines are also hurting small businesses, in
particular, with the “explosion of civil forfeiture cases
[bringing] with it persistent allegations of abuse.”
Louis S. Rulli, Seizing Family Homes from the
Innocent: Can the Eighth Amendment Protect
Minorities and the Poor from Excessive Punishment in
Civil Forfeiture?, 19 U. Pa. J. Const. L. 1111, 1120
(2017) (Excessive Punishment in Civil Forfeiture’).
For example:

The CBS television show, 60 Minutes,
highlighted the plight of Willie Jones, a
black landscaper who was stopped at
the Nashville airport after being
observed paying cash for his airline
ticket. Law enforcement authorities
detained Mr. Jones and seized $9,000
in cash from his person because,
according to police, he matched the
profile of a drug courier. In fact, he was
traveling to Texas to buy shrubs for his
landscaping business and needed cash
to do s0. Nonetheless, police
confiscated his $9,000, and released
him without ever charging him with a
crime. Mr. Jones sued the governncnt
to get his money back and ultimately
prevailed, with the presiding judge
noting that “the statutory [forfeiture]
scheme as well as its administrative
implementation provide|d] substantial

-17-

opportunity for abuse and potentiality
for corruption.”

Id.

In New York City, small businesses “flooded
{then-Public Advocate Bill de Blasio’s] office with
complaints of being hounded for minor offenses and
[being] forced to pay ‘excessive’ fines.” Jessica Dye,
NY Public Advocate Slaps City with Lawsuit over
Fines, Reuters (July 26, 2012). With the City’s
estimated fine revenue doubling from $400 million to
$800 million in a ten-year period, de Blasio sought
“answers about what this ‘fine first, ask questions
later’ enforcement is doing to our small businesses
and their ability to survive in this economy.” Id. See
also Erin Durkin, Newkirk Plaza Merchants Hit with
Fines as de Blasio Pushes City to Ease Up on Small
Businesses, N.Y. Daily News, Apr. 25, 2012; Prince v.
City of New York, 108 A.D.3d 114 (2013) (explaining
how the New York City sanitation police fined a
carpenter/artist $2,000 and had his work-related
vehicle impounded for removing “a single television
antenna from the top of some curbside garbage
bags”).'”

The fines have had particularly deleterious
effects on New York’s “[i/mmigrant entrepreneurs,”
who find themselves faced with a “harsh enforcement
of non-critical violations [that] are creating
unnecessary obstacles to small business success.”

‘2 http:/Awww. nydailynews.com/new-york/brooklyn/newkirk-
plaza-merchants-hit-fines-de-blasio-pushes-city-ease-small-
businesses-article- 1. 1067535.

-18-

Office of Bill de Blasio, Report de Blasio: City Budgets
Drowning Small Businesses in Frivolous Fines (Apr.
25, 2012).'° For example, one proprietor of a Korean
restaurant shut his doors following “years of excessive
fines” for violations concerning his dishwasher’s size
and an occasional broken tile. Melissa Etehad, Small
Business Owners in Flushing Say the City Unfairly
Targets Them, Thelnk.NYC (Oct. 6, 2015). The
former restauranteur, a leader in the local business
association, went on to express concern that city
inspectors were taking advantage of a language
barrier among immigrant entrepreneurs to issue fines
without the proprietor being able to argue back or
fully comprehend the regulatory requirements. See
id.

Similar accounts of excessive fines against
business owners exist all across the country. In Los
Angeles, for example, the city ordered Carl’s Jr. to pay
$1.45 million in restitution and penalties because the
fast food chain failed to pay some employees an
additional $0.25 or $0.50 to meet the updated local
minimum wage. James Peltz, Los Angeles Seeks $1.45
Million from Carl’s Jr. for Alleged Minimum Wage
Violations, Los Angeles Times (June 26, 2017). The
total amount actually owed to the employees in back
pay: $5,400.

Chicago regulations call for fines of $350 to
$15,000 per sign, per day against small businesses

‘8 http://www. maketheroad_org/article_ php?! D=2359.

‘4 http://Atheink. nyc/small-business-owners-in-flushing-say -the-
city-unfairly-targets-them/.

-19-

that post unauthorized signs like “ATM Inside” or
“Breakfast, Lunch & Dinner” on the front window of
their convenience store or restaurant. April
Leachman, When It Come to Sign Violations in
Chicago, It’s All About the Dollar _ Signs,
ChicagoNow.com (Sept. 11, 2017).'5 Under this policy,
one Chicago dry cleaner was threatened with a $1,000
daily fine for a painted window sign that advertised
wedding dress cleaning and leather repair. Alisa
Hauser, City Slaps Fines on Businesses for Putting
Signs on Windows Without Permits, DNAInfo.com
(July 28, 2017).'6 While the dry cleaner took down the
sign, others did not and owe significant sums to the
city in penalties, interest, and administrative and
collection fees. Alisa Hauser and Tanveer Ali, As Sign
Violations Spike, “Erratically Enforced” Law
Questioned, DNAInfo.com (Sept. 11, 2017)."’
Residents, community leaders, and at least one city
alderman have questioned why the city is cracking
down on storefront signs in light of Chicago’s other
pressing problems. See April Leachman, When It
Come to Sign Violations in Chicago, It’s All About the
Dollar Signs.

‘© http://www.chicagonow.com/chicago-on-the-
radar/20 1 7/09/when-it-comes-to-sign-violation-citations-in-

chicago-its-all-about-the-dollar-signs/image/ 1.

‘6 https:/Awww.dnainfo. com/chicago/20 1 70728/wicker-
park/window-signs-permits-chicago-fines-businessowners-
appeal

‘7 https:/Awww.dnainfo.com/chicago/20 17091 1/wicker-
park/sign-ordinance-chicago-business-sign-permits-law-

-20-

And in Colorado and coastal North Carolina,
businesses are fighting against excessive fines levied
by state officials involving workers compensation. In
one example, a Denver-based hospitality company
with an annual payroll of less than $50,000 was fined
$841,200 by the Colorado Division of Workers’
Compensation for failure to provide the appropriate
workers’ compensation insurance for several years.
See Kristen Beckman, Penalty for Lapsed Comp
Coverage Was Excessive, Court Rules, Business
Insurance (Mar. 6, 2017).'* After “Soon Pak, owner of
the company, [argued] that she would be forced to
declare both personal and business bankruptcy and
shut her business down if the fine was enforced,” a
Colorado appellate court intervened and found the
fine excessive—by applying the Eighth Amendment to
state proceedings. See id. Separately, in a scenario
described as “likely ‘representative of situations being
faced by hundreds of small businesses across the
state,” a Corolla, North Carolina diner went to court
over a similar $86,750 penalty even though the
violation was remedied within days of receiving a
notice letter from state officials. Jennifer Henderson,
Coastal Carolina Diner Sues State Agency over
Workers’ Comp Fines, Triangle Business Journal
(June 26, 2017).'9

‘8 https:/Awww. businessinsurance.com/article/20 1 70306/NEW
S08/9 123 12252/Colorado-workers-compensation-fines- Dam:-
Hospitality.

‘8 https:/Awww. bizjournals.com/triangle/news/20 1 7/06/26/coas
tal-carolina-diner-sues-state-agency-over. html

-21-

All of these examples reflect the type of
injustice the Eighth Amendment exists to prevent.
“There is good reason to be concerned,” Justice Scalia
wrote, “that fines, uniquely of all punishments, will be
imposed in a measure out of accord with the penal
goals of retribution and deterrence.” Harmelin v.
Michigan, 501 U.S. 957, 978 n.9 (1991) (Scalia, J.).”
“Imprisonment, corporal punishment, and even
capital punishment cost a State money; fines are a
source of revenue. As we have recognized in the
context of other constitutional provisions, it makes
sense to scrutinize governmental action more closely
when the State stands to benefit.” Jd.

Indeed, earlier this year the Chief Justice of the
Ohio Supreme Court issued a stark warning to her
judicial colleagues that courts must be “centers of
justice, not automatic teller machines whose purpose
is to generate revenue for governments.” Letter from
Ohio Chief Justice Maureen O’Connor to State Judges
(Jan. 29, 2018).2'! Chief Justice O'Connor continued:

» Indeed, even before adoption of the Fourteenth Amendment,
officials recognized the particular destructive power of fines on
businesses. In an 1864 speech, Pennsylvania Senator Edgar
Cowan argued that in order for a fine to be constitutional, it must
“save[] . . . to the merchant his merchandise [and] to the villein
his wainage.” Nicholas M. Mclean, Livelihood, Ability to Pay,
and the Original Meaning of the Excessive Fines Clause, 40
Hastings Const. L.Q. at 884 (citing Cong. Globe, 38th Cong., Ist
Sess. 561 (1864) (statement of Sen. Edgar Cowan)).

21 https:/Awww.supremecourt. ohio.gov/SCO/justices/oconnor/fi
nesFeesBaill etter. pdf.

-22-

[Clourt cases are not business
transactions. . . . Judges and court staff
cannot be seen as collection agents.
Whether courts contribute to a city’s
bottom line or generate sufficient cash
flow for its own operations should not
be even a_ secondary’ thought
considering the role of the judiciary in
our system of government. .. . We
should not be expected to engage in
practices designed to maximize revenue
by taking advantage of our citizens or
ignoring basic constitutional
standards. ... Practices that . . . impose
unreasonable fines, fees, or bail
requirements upon our citizens to raise
money or cave to local funding
pressure .. . are simply wrong.

While a remedy for these problems might lie
with state legislatures, they are not always careful
guardians of constitutional rights and, in times of
budgetary crisis, often look for new avenues to raise
funds. Such bodies are “overstocked with lawyers”
who have little interest in limiting potential sources
of revenue for themselves or their private sector
colleagues (in the form of assistance with forfeiture
proceedings, for example). Less Punitive Damages,
Wash. Post, July 11, 1989.22 Moreover, legislators are
often politically reluctant to discontinue a funding

2 https://www.highbeam.com/doc/1 P2- 1200624. html.

-23-

stream that substitutes financial punishment for tax
increases.

Defendants also cannot always take refuge in
state constitutional or statutory prohibitions on
excessive fines. Not all states have excessive fines
clauses. Moreover, trying to track legal developments
and adjust one’s business affairs based on fifty
different rules for excessive fines is a prohibitively
cumbersome jigsaw puzzle for many corporations to
solve.

Thus, the only way that the longstanding
constitutional principles underlying the Excessive
Fines Clause will be applied fairly and uniformly to
all businesses and individuals across this country is
by a reaffirmation of incorporation by this Court.

C. Excessive Fines, and the Legal
Uncertainty Surrounding Whether

They May Be Imposed, Hinder
Beneficial Economic Activity.

While this case comes to the Court in the
context of the State imposing a_ grossly
disproportionate sanction on a single individual,
Petitioner is not alone in seeking a fair, uniform
standard. The business community and its customers
are equally affected.

“Over-punishment can .. . lead to over-
deterrence, where businesses become too cautious and
refrain from undertaking competitive activity because
of fear that the activity may be deemed” a violation of
law. John Terzaken & Pieter Huizing, Allen & Overy,

-24-

How Much Is Too Much? A Call for Global Principles
to Guide the Punishment of International Cartels, at 6
(Spring 2013) (‘How Much Is Too Much”). When
corporations face the prospect of excessive financial
penalties, products are “withheld from the market by
lawsuit-leery companies,” L. Stuart Ditzen, Are
Punitive Damage Awards Too Punishing?, Phila.
Inquirer, Oct. 29, 1989, thereby depriving businesses
of profitable opportunities and consumers of the
products that they might want to purcha.e. With over
493,000 small businesses and 1,173,626 employees of
such businesses in Indiana alone, see U.S. Small
Business Admin., Office of Advocacy, Small Business
Profile: Indiana,™ for example, even modest risk-
based adjustments can have a significant impact.

Consumers are affected in other ways.
“Excessive fines, designed to punish corporations, will
more likely than not hurt consumers by requiring an
excessive increase in prices as well as an excessive
diversion of resources to prevention activities.”
Michael K. Block, Optimal Penalties, Criminal Law
and the Control of Corporate Behavior, 71 B.U. L. Rev.
395, 402 (1991). Moreover, “excessive fines may lead
to insolvency .. . , which in certain markets may
significantly weaken competition and ultimately hurt
consumers in that market.” John Terzaken & Pieter
Huizing, How Much Is Too Much at 6.

The continuing uncertainty in the legal
landscape also takes a toll. Among other things, such

http://awa2014.concurrences.com/IMG/pdffhow_much_ pdf.
24 https:/Awww.sba.gov/sites/default/files/advocacy/IN_0.pdf.

-25-

uncertainty increases transaction costs, hinders
entrepreneurial investment, and deters consumer
purchases. Indeed, “[b]usinessmen . . . require the
decisions of the courts on commercial issues to be
predictable so that they know where they stand.” L. S.
Sealy and R J A Hooley, Commercial Law: Text, Cases
and Materials at 10 (5th ed. 2003). This is
particularly true here, where businesses may have
their goods and services spanning jurisdictions that
recognize the binding effect of the Eighth Amendment
and those who do not. As the amount of the excessive
fines grows, see supra at 12-22, businesses may need
to avoid transactions in jurisdictions where
businesses are treated unfairly. Such inefficiencies,
caused by legal uncertainty and a patchwork of
inconsistent legal regimes, do not serve businesses or
consumers well.

Ill, AS UNDER FEDERAL LAW, THIS
COURT SHOULD HOLD THAT A STATE
OR LOCAL FINE IS EXCESSIVE UNDER
THE EIGHTH AMENDMENT WHEN IT IS
DISPROPORTIONATE TO THE HARM
CAUSED BY THE UNDERLYING
OFFENSE.

When reviewing fines imposed under federal
law, this Court has already held that the “touchstone
of the constitutional inquiry under the Excessive
Fines Clause is the principle of proportionality: The
amount of the forfeiture must bear some relationship
to the gravity of the offense that it is designed to
punish.” Bajakajian, 524 U.S. at 334. In that case,
Mr. Bajakajian’s reporting violation did not mask any
other currency-related violations and caused no

-26-

independent harm to the government's interest.
Application of the proportionality principle in the
lower court resulted in a reduction of a $350,000
forfeiture based solely on the unreported funds to a

$5,000 penalty.

Bajakajian’s holding “is deeply rooted and
frequently repeated in common-law jurisprudence,”
Solem, 463 U.S. at 284 (collecting authorities), and
grounded in the basic “precept of justice that
punishment for crime should be graduated and
proportioned to offense,” Weems, 217 U.S. at 367. This
Court has “repeatedly applied this proportionality
precept in later cases interpreting the Eighth
Amendment,” including in proceedings arising under
state law. Atkins, 536 U.S. at 311.

Yet this case illustrates how far state and local
governments are straying from these fundamental
principles. After imposing a proportional criminal
fine on Mr. Timbs, Indiana imposed a statutory
forfeiture in an amount arbitrarily set by the value of
the car Mr. Timbs happened to be driving at the time
of the offense. That type of sanction bears little
relationship to the offense or the harm being
remedied. While Indiana may have articulated other
justifications for its forfeiture statute, it is difficult to
see this type of add-on punishment as anything other
than a revenue-seeking exercise.

This Court, as in Bajakajian, should leave it to
the lower state and federal courts to make, in the first
instance, judgments about whether a specific penalty
is excessive under the Eighth Amendment.
Consistent with Bajakajian and other cases, the

-27-

Chamber respectfully submits that lower courts
would benefit from a reaffirmance that the standard
for adjudicating excessiveness in all cases arising
under the Eighth Amendment is assessing the
proportionality of the forfeiture imposed to the public
harm caused by the triggering violation. See, e.g.,
Bajakajian, 524 U.S. at 335 (citing 1 N. Webster,
American Dictionary of the English Language (1828))
(defining “excessive” as “beyond the common measure
or proportion”).

CONCLUSION

Today the imperative for incorporating the
Excessive Fines Clause against the States could
scarcely be clearer. “The very purpose of a Bill of
Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the
courts.” W. Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624, 638 (1943). With excessive fines on the
rise, and the burdens on business and individuals
growing, this case presents the Court with an
opportunity to conclusively resolve the incorporation
question and protect all Americans’ fundamental
right to liberty. This Court should reverse the Indiana
Supreme Court's decision and require the Eighth
Amendment Excessive Fines Clause’s application in
state penalty and forfeiture proceedings.

-28-

Respectfully submitted,
DARYL JOSEFFER BERT W. REIN
MICHAEL B. SCHON Counsel of Record
U.S. CHAMBER CAROL A. LAHAM
LITIGATION CENTER, INC. ANDREW G. WOODSON

1615 H Street NW WILEY REIN LLP
Washington, DC 20062 1776 K Street NW
(202) 463-5337 Washington, DC 20006

(202) 719-7000

brain@wil -

September 11, 2018
Counsel for Amici Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0812%3A17. Public record. Not legal advice.