“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
That is a pretty straightforward set of instructions, dating back to the founding of the United States, about things the government is not allowed to do.
So it was a surprise this week when the U.S. Supreme Court heard a case in which Indiana’s solicitor general contended that the federal restriction on excessive fines does not apply to the states.
A lawyer knows his case is weak — to the point of being indefensible — when a Supreme Court justice remarks, “Really? Come on, general.” But that’s what Justice Neil Gorsuch said in expressing disappointment that the application of the Bill of Rights to the states is still being litigated 229 years after their adoption.
The case is an excellent test of the limits of criminal fines. Indiana police seized a $40,000 Land Rover from a drug addict who was in the vehicle when he sold about $400 worth of heroin to undercover officers.
This is a common law enforcement tactic: Confiscate property used in the commission of a drug crime. It is a legitimate strategy to deter drug sales, but the question in this case is whether seizing property that is 100 times more valuable than the drug transaction is excessive.
Of course it is, and the man sued to get his Land Rover back. But the Indiana Supreme Court noted — correctly — that federal courts had not explicitly ruled the Eighth Amendment’s excessive-fines clause applies to the states. The state court simply lacked the nerve and the common sense to say that it should.
Here’s a question from the non-lawyers in America: Isn’t it way past time for state courts to follow the U.S. Constitution’s entire Bill of Rights?
If you answer no, that implies you don’t think First Amendment religious freedoms, Second Amendment weapons freedoms and Fourth Amendment protection from lawless searches should apply in state courts unless a state’s constitution or the U.S. Supreme Court says they do. Good luck winning that argument, either in court or at the dinner table.
But Indiana’s solicitor general defended the state’s position to the extreme. He agreed that the state had the right, if it wished, to confiscate the vehicles of anyone exceeding the speed limit by 5 miles per hour.
This is not a difficult issue to settle, and based on the justices’ questions, it is all but certain they will rule in favor of the Land Rover owner. As well they should. Hopefully the justices will send a message with a unanimous ruling.
The man was selling drugs and deserved to be punished. But the Founding Fathers’ intentions were crystal clear: The government has no right to impose excessive fines. And it is ridiculous to claim, as Indiana did, that a civil forfeiture of property is not the equivalent of a fine.
