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SCOTUS: The Eighth Amendment’s excessive fine clause applies to states

Timbs v. Indiana, USSC No. 17-1091, February 20, 2019, reversing State v. Timbs, 84 N.E.3d 1179 (Ind. 2017); Scotusblog page (including links to briefs and commentary)

“The question presented: Is the Eighth Amendment’s Excessive Fines Clause an ‘incorporated’ protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?” The answer: Yes.

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” 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 “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. (Slip op. at 2).

The Court was unanimous, including on the point that the Clause operates to limit excessive civil forfeitures as well as fines, though two justices (Gorsuch and Thomas) think that incorporation of federal rights should proceed via the Fourteenth Amendment’s Privileges and Immunities Clause, not the Due Process Clause.

This case was closely watched, and the Court was widely expected to reach the conclusion it did. It may put a spanner in the works of law enforcement agencies around the country who engage in what is called “policing for profit.” For that view, see, e.g., here.

The decision makes no sea-change in Wisconsin. Both the supreme court and the court of appeals have assumed the Excessive Fines Clause applies to the states, City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 190, 532 N.W.2d 690, 698 (1995), and State v. Hammad, 212 Wis. 2d 343, 348, 569 N.W.2d 68 (Ct. App. 1997), and the court of appeals has addressed Eighth Amendment challenges to property forfeitures in a number of cases, e.g., HammadState v. One 2013 Toyota Corolla, 2015 WI App 84, ¶¶14-22, 365 Wis. 2d 582, 872 N.W.2d 98; State v. Boyd, 2000 WI App 208, ¶¶7-17, 238 Wis. 2d 693, 618 N.W.2d 251; and State v. Bergquist, 2002 WI App 39, ¶¶10-14, 250 Wis. 2d 792, 641 N.W.2d 179.

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