The U.S. Supreme Court held this morning in Timbs v. Indiana that the Excessive Fines Clause of the Eighth Amendment, originally applicable only to the federal government, applies to the states as well through the Fourteenth. The court held in a federal case in 1993 that "excessive fines" includes excessive forfeitures. Not surprisingly, there is no dissent as to the result. The case goes back to the Indiana Supreme Court for application to the facts of the case -- forfeiting a Land Rover for transporting drugs where the vehicle is worth four times the maximum fine for the offense.
This is likely the last provision of the Bill of Rights to be "incorporated." The Court decided well over a century ago that the already-obsolete grand jury clause of the Fifth Amendment would not be incorporated, and it is unlikely to revisit that decision. Incorporating the Seventh Amendment and requiring jury trials in state-court civil cases for $21 is also not going to happen. The Third Amendment, quartering troops in private homes in peacetime, is unlikely to arise, to put it mildly.
Justices Thomas and Gorsuch write separately on the question of whether the Privileges or Immunities Clause rather than the Due Process Clause should be the mechanism of incorporation. Justice Thomas says yes, and Justice Gorsuch says maybe. That would be a better fit to the original understanding of the Fourteenth Amendment. Justice Gorsuch notes that nothing in this case turns on that question, though.
Jess Bravin has this article in the WSJ noting that the ruling "potentially jeopardizi[es] asset-forfeiture programs that help fund police operations with property seized from criminal suspects." True, some worthy projects may need to find other funding sources or may go unfunded, but using punishment as a targeted revenue source is a fundamentally flawed idea. Punishments should be imposed according to what is just, and the money should go into the general fund so that no decision-maker has a specific incentive to punish more harshly to get the money.
Agreed. Good riddance to a highly questionable practice--turning cops into repo men isn't the way to raise revenue.
Steven: In Adamson v. California, Justice Black advocated incorporation of the entire Bill of Rights. Today, the doctrine of selective incorporation appears to be only a way for the judicial branch to limit participation of the citizenry to the judicial power.