By R. Jeffrey Lowe
This is the second part of a two-part article. The first part appeared in the March 18 edition of Indiana Lawyer as the monthly DTCI column.
… Therefore, the court established the next step in the analysis, which it defined as the grossly disproportional test. Specifically, it held “the proportionality limitation for use-based in rem fines is this: based on the totality of the circumstances, if the punitive value of the forfeiture is grossly disproportional to the gravity of the underlying offenses and the owner’s culpability for the property’s criminal use, the fine is unconstitutionally excessive.” It provided three factors for consideration: (1) the harshness of the punishment; (2) the severity of the offense; (3) and the claimant’s culpability.
Under the harshness of the punishment factor, it suggested the trial court may consider the following: (1) the extent to which the forfeiture would remedy the harm caused (signaling where the remedial nature of the forfeiture should be considered); (2) the property’s role in the underlying offenses; (3) the property’s use in other activities, criminal or lawful; (4) the property’s market value; (5) other sanctions imposed on the claimant; and (6) effects the forfeiture will have on the claimant. The court rejected the state’s contention that the property’s value and the respondent’s economic means should be excluded from consideration. The court, however, counseled these factors could work in favor of the state or the respondent, depending on the circumstances established at the trial court level.
Under the severity of the offense factor, the court held trial courts could consider several circumstances, such as: (1) the seriousness of the statutory offense, considering statutory penalties; (2) the seriousness of the specific crime committed compared to other variants of the offense, considering any sentences imposed; (3) the harm caused by the crime committed; and (4) the relationship of the offense to other criminal activity. These factors must be considered alongside the owner’s culpability.
For the third and final factor, the court held trial courts should focus on the claimant’s blameworthiness for the property being used in the crime. It held if a claimant is innocent of the property’s involvement in the crime, the forfeiture may be a per se excessive fine. However, on the other end of the spectrum was a claimant who used the property to commit the crime. Everything in the middle was where most cases would be analyzed and considered in conjunction with the other factors.
The court remanded the case to the trial court to consider the proportionality test and to determine whether the fine was excessive. The trial court held a hearing on February 21, 2020, but has not yet rendered a decision. If the previous course of this case is any indication, we may not have seen the last of this case in the Indiana or federal appellate courts.
For practitioners, there are some clear takeaways from the case. If you are dealing with an innocent owner, it will be difficult to establish the forfeiture is not grossly disproportionate. While not specifically finding a per se rule, the court sent signals indicating that it may consider that issue in the future. In addition, in a situation where the property’s value is considerable, it appears the relationship between the property and criminal activity will have to be significant. That the forfeiture of the $40,000 Land Rover would be four times the maximum fine that could be imposed for the crimes to which Timbs pleaded guilty was important enough for the court to include in its opinion. The court pointed out that Timbs was paying roughly $1,200 in fines and reimbursement and serving only one year home incarceration for his crimes. These penalties could demonstrate the relationship between the potential and imposed fines and the amount of the property forfeited. For smaller value property, the relationship will need to exist, but it seems as if a more tenuous relationship may satisfy the court. It also appears if the offense is one that causes harm to individuals or property, that would be a factor that would weigh in favor of efforts to seize that property.
Practitioners are currently without guidance about whether any of these listed factors may be more important than others or how trial courts will consider these factors. Caselaw will develop over time to assist practitioners to address these factors. However, at the current time, attorneys representing governmental entities will serve their clients well to read the Indiana Supreme Court’s opinion from Timbs, which will provide insights into certain issues the court considers important in evaluating claims that a specific forfeiture violated the respondent’s rights under the Excessive Fines Clause of the Eighth Amendment.•
R. Jeffrey Lowe is a partner in the New Albany office of Kightlinger & Gray and is a member of the DTCI board of directors. Opinions expressed are those of the author.