Stafford: Justices can’t kick Indiana’s civil forfeiture addiction

The term “excessive fine” is understandable. Unless you are a member of the Indiana Supreme Court. Then, in the context of civil asset forfeiture, the term becomes an enigma to be parsed in three dozen pages of ridiculous legal logic that even one of the five justices confessed he could not comprehend. See State of Indiana v. Tyson Timbs, 27S04-1702-MI-70.

The United States Supreme Court, after due consideration last year, told our Hoosier justices that the United States Constitution does in fact apply in the Hoosier State. I take comfort in that, though I thought the question had been settled at Appomattox Court House in 1865.

But after Indiana’s justices got the Timbs case back from Washington after a sound rebuke on that question, they just could not go cold turkey and drop the civil forfeiture case that will not die. They are caught in the grip of our state’s and our nation’s addiction to civil forfeiture. Even after the highest court in the land conducted an intervention and told us we have a problem.

The Tyson Timbs case is not hard, despite the Indiana Supreme Court’s insistence on making it so. Bad habits are hard to break.

The background is this: After Timbs pleaded guilty to a count of dealing heroin, he was convicted and sentenced. But while Timbs was recovering and repaying his debt to society back in 2015, the state had goo-goo eyes for his $40,000-plus Land Rover. Timbs’ vehicle had been purchased with proceeds from his late father’s life insurance policy and not from drug money. But that didn’t matter to police and prosecutors looking to score.

Pity the Grant Superior Court. The judge there undertook a sober analysis, looking at the statute under which Timbs was convicted. It imposes a maximum fine of $10,000. The court then looked at the Eighth Amendment to the United States Constitution, which reads, “Excessive bail shall not be required, nor excessive fines imposed … .” The trial court then applied reason and judicial restraint, writing, “The Court finds that the judgment of forfeiture sought by the state violates the Excessive Fines Clause … .”

But police and prosecutors hooked on seizing assets were simply jonesing for Timbs’ Land Rover. They kept appealing, and losing, until the Indiana Supreme Court famously ruled that the seizure of a vehicle worth four times the maximum fine allowed by law was, in their eyes, legal. Their original justification was that they were not sure that the federal constitution they had taken an oath to support actually mattered in Indiana.

As mentioned, the Supreme Court of the United States slam-dunked that logic, but the Indiana justices found another way to try to feed the forfeiture addiction. On remand from the SCOTUS benchslap, our justices last month sent the case back for the Grant Superior Court to work out not whether this is an excessive fine (silly judge), but, in the words of Chief Justice Loretta Rush, “whether Timbs has cleared the hurdle of establishing gross disproportionality, entitling him to relief.”

“Gross disproportionality?” How gross must the disproportionality be to be excessive?

There is danger here. Read the US Supreme Court’s Timbs ruling. Those justices spelled out the threats better than I can. The Indiana Supreme Court’s Timbs jurisprudence signifies a statist assault on personal property rights and an affront to individual liberty. SCOTUS’ mindful intervention with our justices in Timbs did not take. They’ve relapsed, and they are now in the denial stage.

After SCOTUS duly whipped Indiana in Timbs, I felt a journalistic duty to take our justices and our state to task in this space earlier this year. A former member of our state supreme court informally called me afterward to try to take the stink off this skunk and explain what my opinion did not understand. After a few minutes, the ex-justice posited a hypothetical: Suppose Timbs got a lighter sentence in this case because he owned property of value that police and prosecutors could seize.

As hypotheticals go … are you kidding me? The justice was quick to say there had been no implication that this had happened in Timbs’ case, and that was not being suggested, but the startling proposition illustrates how excessive civil forfeitures undermine prospects for equal justice for all under the law.

The dangers of abuse are known. But the Indiana Supreme Court’s most recent Timbs ruling shows our justices have not been rehabilitated. They’ve shown a willingness to be judicial acitivsts assaulting the plain language of the framers to feed the civil forfeiture addiction. Twice.•

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• Dave Stafford is editor of Indiana Lawyer. Opinions expressed are those of the author.

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