Neil Gorsuch and Sonia Sotomayor Just Came Out Swinging Against Policing for Profit

Sonia Sotomayor and Neil Gorsuch.
Photo illustration by Slate. Photos by Alex Wong/Getty Images and Jim Lo Scalzo—Pool/Getty Images.

Tyson Timbs just wants his car back. In 2015, Timbs was charged with selling heroin to undercover officers in Indiana to fund his opioid addiction. After he pleaded guilty, a private law firm filed a lawsuit on behalf of the state to confiscate his Land Rover SUV, valued at $42,000. That’s more than four times the maximum $10,000 fine for Timbs’ crimes. But because he briefly carried drugs in the vehicle, the firm claimed that it could seize and sell it, turning over some of the profit to Indiana and pocketing the rest.

Welcome to the topsy-turvy world of civil asset forfeiture, also known as legalized theft. Every year, the federal and state governments obtain billions of dollars thanks to the work of prosecutors who expropriate property with some tenuous connection to a crime. Most states use the money to fund law enforcement, called policing for profit. Indiana also lets private attorneys file forfeiture claims against defendants, earning contingency fees and a share of the profit. That’s what happened to Timbs—so he sued, insisting that extreme forfeiture violates the Constitution. On Wednesday, the Supreme Court signaled that it agreed, with an unusual coalition of justices assailing the practice. A decision for Timbs could curb law enforcement abuses across the country, limiting one of the most scandalous components of our criminal justice system.

In a sense, Timbs v. Indiana is a pretty easy case. The Eighth Amendment bars the imposition of “excessive fines,” and the Supreme Court has already recognized that the forfeiture of personal property qualifies as a “fine” for constitutional purposes. It has also ruled that fines may not be “grossly disproportionate” to an offense. When the government seized Timbs’ car—which, again, is worth vastly more than the monetary penalty for his crime—it would seem to have imposed a grossly disproportionate fine in violation of the Eighth Amendment.

But, weirdly enough, the court has never explicitly held that this rule restricts state governments. The Bill of Rights originally applied only to the federal government, as the Framers were hesitant to limit state sovereignty. After the Civil War, Congress drafted the 14th Amendment with the intent to “incorporate” the Bill of Rights against state governments as well. Throughout the 20th century, the Supreme Court held that almost all these rights did, indeed, apply to states. That’s why neither Congress nor your state government may infringe upon your freedom of speech, authorize an unreasonable search, or compel self-incrimination. But the court has never had an opportunity to squarely state that the excessive fines clause is “incorporated”—until now.

There is little doubt that the justices will use Timbs to incorporate the clause at long last. Under long-standing precedent, a right that is “fundamental” to “ordered liberty” and “deeply rooted” in history receives protection under the 14th Amendment. And in its extraordinary brief, the Institute for Justice—the libertarian firm representing Timbs—demonstrates that the right against excessive fines checks both boxes. It was enshrined in the Magna Carta and safeguarded by most state constitutions when the U.S. Constitution was ratified. When Congress wrote the 14th Amendment, lawmakers argued that it would nullify “Black Codes” in Southern states that levied crippling, arbitrary fines on newly freed slaves. There is really no plausible argument that the right against excessive fines is not “fundamental” or “deeply rooted” and thus incorporated against the states.

So when Indiana Solicitor General Thomas Fisher approached the lectern to argue that the excessive fines clause doesn’t fully apply to Indiana, Justice Neil Gorsuch pounced. “Can we just get one thing off the table?” he asked. “We all agree that the excessive fines clause is incorporated against the states. … Can we at least agree on that?” Fisher hedged, but Gorsuch shot back: “I think a ‘yes’ or ‘no’ would probably be a good starting place.” Fisher tried to suggest the truth was more complicated, but Gorsuch cut him off, noting that most of the Bill of Rights was incorporated “in, like, the 1940s.”

“And here we are in 2018, still litigating incorporation of the Bill of Rights,” the justice said. “Really? Come on, General.” He leaned back in his chair, grinning like the cat that caught the canary.

Although Gorsuch led the charge, no justice seemed to think that the Constitution permits states to impose excessive fines. So Fisher raised a backup argument, alleging that the Eighth Amendment doesn’t bar forfeitures of property, only money. The problem with this claim is that the court rejected it in 1993’s Austin v. United States. So Fisher asked the court to overrule Austin, further flummoxing Gorsuch.

“Let’s say this court’s not inclined to revisit Austin,” he told Thomas. “You’re going to lose not just the incorporation question but the merits question too.” Justice Stephen Breyer asked if Indiana could seize a Bugatti if it was going 5 miles per hour over the speed limit. “Yes, it’s forfeitable,” Fisher responded. Breyer mused: What about a “Mercedes, or a special Ferrari or even jalopy?” Fisher laughed at Breyer’s fanciful hypotheticals. But Justice Sonia Sotomayor, Gorsuch’s new criminal justice ally, looked unamused.

“Justice Scalia said it very well,” she told Fisher, quoting Scalia’s opinion in Austin. “For the Eighth Amendment to limit cash fines while permitting limitless [property confiscation] would make little sense.” Instead, it would revive England’s notoriously lawless Star Chamber. Gorsuch nodded vigorously in agreement. “Are we trying to avoid a society that’s like the Star Chamber?” Sotomayor asked. “If we look at these forfeitures that are occurring today … many of them seem grossly disproportionate to the crimes being charged.”

She’s right. In Philadelphia, prosecutors seized one couple’s house because their son was arrested with $40 worth of drugs. Officials there seized 1,000 other houses and 3,300 vehicles before a 2018 settlement that led to reparations for victims. In 2014, federal prosecutors used asset forfeiture to take more stuff than burglars. One Texas police department seized property from out-of-town drivers, then colluded with the district attorney to coerce these drivers into waiving their rights. Law enforcement frequently targets poor people and racial minorities, figuring they are unable to fight back.

Although he said nothing on Wednesday (as usual), Justice Clarence Thomas is one of the court’s fiercest critics of civil asset forfeiture. In 2017, he wrote a solo opinion urging the court to rein in the practice. Citing its “egregious and well-chronicled abuses,” Thomas asserted that the Constitution likely does not allow police to “seize property with limited judicial oversight and retain it for their own use.” And in 1998, he authored a 5–4 decision, joined only by the liberals, outlawing forfeitures that are “grossly disproportional to the gravity of [the] offense.”

So while Gorsuch and Sotomayor led the fight on Wednesday, there’s probably a cross-ideological coalition of justices prepared to invalidate excessive forfeitures. Such a ruling would reflect broad agreement across the ideological spectrum that forfeiture has gone too far. Among the organizations that wrote or joined amicus briefs supporting Timbs are the progressive ACLU and NAACP; the libertarian Cato and Goldwater institutes, as well as the Pacific Legal Foundation; the conservative Chamber of Commerce and Judicial Watch; and the fundamentalist Foundation for Moral Law, which is “dedicated to the defense of God-given liberties.”

Only Chief Justice John Roberts and Justice Samuel Alito expressed any interest in allowing civil asset forfeiture to continue unabated. A majority of the court seems poised to rule that all 50 states must stop seizing property in a way that’s grossly disproportionate to the crime committed—a holy grail of criminal justice reformers. In one fell swoop, defendants will receive new protections against the legalized theft of their stuff. And Tyson Timbs, who attended Wednesday’s argument, can demand that Indiana return the Land Rover that it never had a right to seize in the first place.