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The Eighth Amendment is Alive and Well

W. Scott Cole

Posted on February 22, 2019 01:16

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I did not plan on revisiting this issue so soon, but when the Supreme Court hands down a ruling such as the one just delivered concerning asset forfeiture, it deserves a few words. That is especially so when, as this one, it was a rare unanimous ruling.

The case that came in front of the Supreme Court, as readers may (or may not) remember from my last TLT on the subject of asset forfeiture, was brought by an Indiana man who was arrested for selling undercover officers $300 worth of drugs in 2015. He pled guilty and was sentenced to one year of house arrest and five years probation. The state also seized his Land Rover, valued at over $40,000, that he had bought with proceeds from his father’s life insurance policy.

He filed suit claiming a violation of the Eighth Amendment’s prohibition against excessive fines, as the Land Rover was worth much more than the maximum $10,000 fine that state law authorized, and the case made it’s way to the U.S. Supreme Court. One of the surprises in this case is that it only took three years to get there. Most cases take at least three years just to get through the state courts and then they have a minimum of two levels of federal courts to get through before the Supreme Court can even be petitioned. For a court case, this was lightning fast.

The end result was a win for the little guy and a huge defeat for the states that use asset forfeiture as a lucrative revenue source.

Another surprise was the language used by the Court, both in it’s ruling and in reports of the oral arguments. Over the years, I have read (at a conservative estimate), several hundred Supreme Court rulings and many reports of oral arguments. I do not remember any in which the Court so soundly rebuked any governmental entity, much less a state.

The State of Indiana had argued that the Eighth Amendment applied only to the Federal Government, not the states. The Justices disagreed completely, as the state should have expected. Justice Gorsuch, in addressing the Indiana State Solicitor, said “Here we are in 2018 still litigating incorporation of the Bill of Rights. Really?”

That was followed by Justice Kavanagh asking, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

Justice Ginsburg, who just returned to the bench after surgery for lung cancer, wrote the ruling, and in it, she said, “The protection against excessive fines guards against abuses of government’s punitive or criminal law enforcement authority. This safeguard, we hold, is ‘fundamental to our scheme of ordered liberty’, with deep roots in our history and tradition. The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the 14th Amendment.”

The fight is not over for the little guy in this case. He must still go back to the state courts to litigate his excessive fine claim, but the state courts must now base their rulings on this Supreme Court decision. Additionally, this ruling applies to every state, who must now consider the Eighth Amendment when they seize assets from their citizens under forfeiture laws.

W. Scott Cole

Posted on February 22, 2019 01:16

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