Nahmod Law

The Eighth Amendment

The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Although the Eighth Amendment on its face applies only to the federal government, the Excessive Bail and Cruel and Unusual Punishment Clauses, like many other provisions of the Bill of Rights, have gradually been incorporated and applied to the states and local governments through the 14th Amendment’s Due Process Clause. But what of the Excessive Fines Clause?

Timbs v. Indiana and the Excessive Fines Clause

On February 20, 2019, the Supreme Court held in Timbs v. Indiana, No. 17-1091, reversing the Indiana Supreme Court, that the Excessive Fines Clause is similarly incorporated and applies to states and local governments. The Court, in an opinion by Justice Ginsburg, found that the Excessive Fines Clause is fundamental to our scheme of ordered liberty with deep roots in history and our tradition. The Court further rejected Indiana’s argument that the Clause does not apply to the use of civil in rem forfeitures, reasoning that the proper incorporation inquiry is whether the right guaranteed in fundamental and deeply rooted, not whether each and every particular application of that right is fundamental or deeply rooted. The Supreme Court then remanded to the Indiana Supreme Court to determine whether the attempted civil in rem forfeiture in Timbs violated the Excessive Fines Clause.

What does this have to do with section 1983? A great deal, it turns out.

Civil In Rem Forfeiture Proceedings

In Timbs itself, the criminal defendant pleaded guilty to state charges of dealing in a controlled substance and conspiracy to commit theft, and had already been sentenced to one-year home detention and five-years probation, with fees and costs totaling $1203.

But this did not satisfy Indiana. It also engaged a private law firm–a not unusual tactic in such cases–to bring a civil suit on behalf of the state for forfeiture of the criminal defendant’s recently purchased $42,000 Land Rover. The suit charged that the vehicle had been used to transport heroin. Notably, the maximum monetary fine for a drug conviction under Indiana law is $10,000, less than one-quarter of the value of the Land Rover. In addition, the Land Rover was purchased by the defendant with money from an insurance policy when his father died.

Section 1983 Implications

Here’s where section 1983 may come into the picture. The criminal defendant in Timbs, and others like him, can now use the Excessive Fines Clause as an affirmative Eighth Amendment defense to a civil in rem forfeiture proceeding. Going even further, the criminal defendant in Timbs, and others like him, can raise the Excessive Force argument as the basis of a section 1983 counterclaim for damages. Since the civil in rem forfeiture proceeding is brought on behalf of the state, albeit by a private law firm, there would still be state action.

It is true that the state itself is not a suable person for damages under section 1983 (in contrast, local governments can indeed be sued for damages under section 1983). Nevertheless responsible state officials (and local government officials as well) could be sued for damages in their individual capacities. Timbs has now clearly established relevant Eighth Amendment Excessive Fines Clause law for qualified immunity purposes, although what is excessive or not was not addressed by the Court.

Note also that a possible hurdle for criminal defendants who want to bring section 1983 claims against state and local government officials based on the Excessive Fines Clause could be absolute prosecutorial immunity.

(See chs. 7 & 8, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2018), on absolute and qualified immunity).

But I am getting ahead of myself here. Despite these qualifications, Timbs is an Eighth Amendment game-changer.