Why I am certainly hoping, but not really expecting, Timbs to end up being a big deal

As reported here, on Wednesday the US Supreme Court has handed down its opinion in Timbs v. Indiana.  I was not at all surprised that the Justices decided unanimously that the Excessive Fines Clause of Eighth Amendment applies to the states, but I have since been surprised that some press coverage suggests that this ruling in a very big deal.  For example, consider this piece from Slate by Mark Joseph Stern, headlined "The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit."  The piece's first paragraph seems to reflect way too much excitement as a result of a small and expected decision:

The Supreme Court struck an extraordinary blow for criminal justice reform on Wednesday, placing real limitations on policing for profit across the country.  Its unanimous decision for the first time prohibits all 50 states from imposing excessive fines, including the seizure of property, on people accused or convicted of a crime.  Rarely does the court hand down a ruling of such constitutional magnitude — and seldom do all nine justices agree to restrict the power that police and prosecutors exert over individuals.  The landmark decision represents a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far.

This paragraph strikes me as off in both spirit and particulars.  For starters, there is nothing really "extraordinary" about the Supreme Court deciding that the states are subject to the Excessive Fines Clause of Eighth Amendment given that just about every other significant provision of the Bill of Rights applies to the states.  Moreover, even before Timbs, all 50 states were in various ways already prohibited from imposing excessive fines given that, as the Timbs opinion notes, "all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality." 

Had the Justices gone on to clearly and directly rule that seizure of Tyson Timbs' Land Rover SUV constituted an excessive fine for his low-level drug dealing (as lower courts in Indiana had found), then I would agree that Timbs is a rare "ruling of such constitutional magnitude."  But the Justices in Timbs spoke only to the threshold incorporation issue, and so I do not see the ruling to "represent a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far."  That said, the widespread praise the opinion has received from across the political spectrum does make me hopeful that lower courts over time will be emboldened by Timbs to find more economic sanctions excessive.  But this other reporting on the opinion, headlined "Court Decision Doesn’t Guarantee Radical Changes to Fines and Property Seizures," better captures my sense that Timbs is as much as an opportunity missed as a "landmark decision."

In this context, it bears here noting a comment from LawProf Michael Mannheimer on Facebook: "Remember that they held the Cruel and Unusual Punishments Clause to be incorporated nearly sixty years ago.  And they've held how many non-capital sentences to be cruel and unusual?"  The answer is, of course, only a couple of hundreds of millions of non-capital sentences have been found unconstitutional in the era of mass incarceration. Recall that in Harmelin v. Michigan in 1991, the Supreme Court upheld a mandatory life without parole sentence for mere possession of a large quantity or drugs.  During oral argument in Timbs, some Justices seemed to struggle with the notion its jurisprudence might say forfeiture of an SUV violates the Eighth Amendment for selling drugs, but forfeiture of a lifetime of liberty for possessing drugs does not.

I sincerely hope and want to believe it is possible future Excessive Fines Clause jurisprudence is not as toothless as the Cruel and Unusual Punishments Clause has been for prison terms. Indeed, I hope that Timbs prompts the Justices to be thinking more about the importance of the Eighth Amendment's role in checking government excess in punishment, and that this thinking prompts them to grant cert in US v. Rivera–Ruperto, the extraordinarily compelling Cruel and Unusual Punishments case now before the Court which presents the Justices with an extraordinary opportunity to consider overruling Harmelin.

A few prior related posts:

• Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant
• Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
• Doesn't the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto?