The Forfeiture Forecast After Timbs: Cloudy with a Chance of Offender Ability to Pay

Abstract

On February 20, 2019, the United States Supreme Court handed down a landmark decision in Timbs v. Indiana by unanimously holding that the Eighth Amendment’s Excessive Fines Clause applies to states as incorporated by the Fourteenth Amendment’s Due Process Clause. In so doing, the Court armed state litigants with a seemingly powerful constitutional protection against civil asset forfeiture. In reality, however, the Timbs decision raised far more questions than it resolved. Justice Ginsburg’s majority opinion implicitly endorsed Court precedent that would limit forfeiture assessment to a gross disproportionality standard. Yet the opinion also chronicled the history of civil forfeiture to emphasize the long-established practice of considering a defendant’s ability to pay when imposing fines. In practice, these two metrics—the Court’s past treatment of forfeitures and customary Anglo-American safeguards in assessing individual fines—conflict with one another. Thus, the Timbs decision provides little guidance for practitioners with respect to the manner in which state courts will apply the U.S. Constitution’s Excessive Fines Clause to civil in rem forfeitures. By affording state courts the option to consider an offender’s financial capability in an Excessive Fines Clause analysis, without outlining a concrete test for how to do so, the Court only has exacerbated the existing widespread divergence among lower courts. This Note argues that the Supreme Court missed a critical opportunity to right the sinking ship of civil forfeiture, by failing to anchor its analysis squarely within the Eighth Amendment framework and leaving unchecked the significant power of this prosecutorial tool. Given the renewed doctrinal confusion that is likely to emerge from Timbs, now is an optimal time for litigants to challenge civil forfeiture actions. Through precise legal actions, individuals finally may compel the Court to adopt a clear and holistic Excessive Fines Clause analysis, in which an offender’s ability to pay is rightfully recognized.