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Indiana Supreme Court Announces Analytical Framework When Determining Whether Punitive In Rem Forfeiture Violates Excessive Fines Clause

by Douglas Ankney

The Supreme Court of Indiana announced the analytical framework for courts to use when determining whether a punitive in rem forfeiture violates the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution. [Note: An action in rem is brought against “a thing or property” as opposed to an action in personam which is brought against a person.] This case was on remand from the Supreme Court of the United States (“SCOTUS”) after it held in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the Excessive Fines Clause applies to the states via the Fourteenth Amendment.

Tyson Timbs became addicted to prescription hydrocodone pills while being treated for foot pain. When the prescription ran out, he eventually turned to heroin. He failed a drug screen and lost his job. He then sought treatment and got clean.

Timbs later purchased a Land Rover with $42,000 of the $73,000 that he received from his deceased father’s life insurance policy. He began using heroin again after his father’s death, driving the Land Rover 60 to 90 miles to meet his supplier. A confidential informant told police that Timbs might sell heroin, even though he had not sold before. Police made two controlled buys from Timbs of two grams of heroin at each buy for a total of four grams sold for $385.

Timbs was eventually arrested and pleaded guilty to, inter alia, one count of dealing in a controlled substance. He was sentenced to: six years’ imprisonment with five years suspended to probation and one year to be served on home detention, a drug and alcohol program, payment of a $400 program fee, reimbursement of $385 to the drug task force for its investigation, and $418 in court costs. The State then brought a civil action in rem for forfeiture of the Land Rover under Indiana Code § 34-24-1(a)(1)(A), which permits seizure by forfeiture of vehicles used to facilitate the transportation of controlled substances.

The trial court determined the forfeiture violated the Excessive Fines Clause and ruled in Timbs’ favor. The Court of Appeals affirmed, but the Indiana Supreme Court reversed, holding that the Excessive Fines Clause of the U.S. Constitution does not apply to the states. SCOTUS granted certiorari and held that the Excessive Fines Clause does apply to the states, reversed the decision, and remanded back the Indiana Supreme Court (see CLN, April 2019, p. 22).

On remand, the Indiana Supreme Court observed, “The Eighth Amendment guarantees that ‘[e]excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’” The “Excessive fines Clause ... applies only to fines, or ‘payment[s] to a sovereign as punishment for some offense.’” Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal Inc., 492 U.S. 257 (1989).

A forfeiture of property that was used to facilitate a crime is a payment or “fine” if the purpose of the forfeiture is punitive in nature. Austin v. United States, 509 U.S. 602 (1993). A forfeiture is punitive when the forfeiture is linked to specific offenses, the forfeiture statute permits an “innocent owner defense,” and when the value of the forfeited property isn’t for remedial purposes or restitution. Id. An in rem forfeiture is different from an in personam forfeiture in that an in rem forfeiture requires that the property be used to facilitate a crime; whereas, an in personam forfeiture requires only that a person be convicted of a crime. United States v. Bajakajian, 524 U.S. 321 (1998). If the property wasn’t used to facilitate a crime or was not “an instrumentality” in the commission of a crime, then an in rem forfeiture is unconstitutional. Id. An in personam forfeiture is unconstitutional if it is grossly disproportionate to the crime of conviction.

The Indiana Supreme Court opined that although SCOTUS applied the gross-disproportionality standard only to in personam forfeitures in Bajakajian, the same reasoning applies to punitive in rem forfeitures. Punitive forfeitures must “‘be proportioned to the wrong’ and ‘not be so large as to deprive [an offender] of his livelihood.’” Timbs v. Indiana, 139 S. Ct. 682 (2019).

In the present case, the Court agreed with the parties that the forfeiture in question was at least partly punitive and thus subject to the Excessive Fines Clause. The determinative issue then was whether the fine in the form of forfeiture of Timbs’ vehicle is excessive. The State argued that “if the property was an instrument of crime, then its forfeiture is not excessive—full stop.” In contrast, Timbs argued that excessiveness analysis involves two questions: “Was the property instrumental in the underlying crime? And, if so, would the property’s forfeiture be grossly disproportional to the gravity of the offense?” That is, it’s a fact intensive analysis, so the “one-size-fits-all” test put forth by the State is inappropriate.

The Court rejected the State’s position, noting that it “has found practically no traction among federal circuit and state supreme courts” for it. Instead, it held that “the Excessive Fines Clause includes both an instrumentality limitation and a proportionality one for use-based in rem fines.” The Court further held that “gross disproportionality—not strict proportionality—is the appropriate standard for assessing whether an in rem instrumentality forfeiture is excessive.”

The Court announced that when a defendant claims a forfeiture statute is unconstitutional as applied, the gross-disproportionality standard requires courts to consider: (1) harshness of punishment; (2) severity of offenses; and (3) claimant’s culpability. By way of guidance, the Court provided lists of non-exclusive factors to be considered in determining harshness of punishment.

The Court explained that the proportionality analysis announced “is factually intensive and depends on the totality of the circumstances.” Since the trial court lacked this analytical framework, the record in insufficient to make a determination on the issue of whether the forfeiture of Timbs’ Land Rover violates the gross-disproportionality standard for purposes of the Excessive Fines Clause.

Accordingly, the Court vacated and remanded to the trial court for a gross-disproportionality review based on the Court’s analytical framework set out in this opinion. See: State v. Timbs, 134 N.E.3d 12 (Ind. 2019). 

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