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November 28, 2018

SCOTUS argument in Timbs suggest agreement on incorporation of Excessive Fines Clause and perhaps little else

In this post yesterday previewing today's SCOTUS oral argument in Timbs v. Indiana, I confidently predicted that the Justices will decide that the Excessive Fines Clause applies to the states, and further suggested that the Court may be too divided to say much more about the application of the EFC.   My prediction was not especially bold, but reports on the argument suggest that it is on the right track.

From SCOTUSblog: Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does....

There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited....

Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more. That could still be good news for Timbs, because two lower courts agreed with him that the forfeiture of the Land Rover was excessive; the Indiana Supreme Court ruled only that the excessive fines clause does not apply to the states at all.

From The Volokh Conspiracy: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures:

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states.  The justices also seem likely to rule that at least some state asset forfeitures violate the Clause.  Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation.  It is hard to say, however, what — if anything — the Court will do on the question of how to define "excessive."  The justices could well decide to leave it to the lower courts, at least for the time being.

The full transcript of oral argument in Timbs v. Indiana is available at this link.

Prior (somewhat) related posts:

November 28, 2018 at 11:58 PM | Permalink

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