Argued: June 28, 2019.
from the Grant Superior Court, No. 27D01-1308-MI-92 The
Honorable Jeffrey D. Todd, Judge
Remand from the Supreme Court of the United States, No.
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General
of Indiana Thomas M. Fisher Solicitor General Kian J. Hudson
Deputy Solicitor General Aaron T. Craft Chandra K. Hein Julia
C. Payne Justin F. Roebel Deputy Attorneys General.
ATTORNEYS FOR APPELLEE Samuel B. Gedge Institute for Justice
Arlington, Virginia Wesley Hottot Institute for Justice
Seattle, Washington J. Lee McNeely Cynthia A. Bedrick Scott
A. Milkey McNeely Stephenson Shelbyville, Indiana David W.
Stone IV Stone Law Office & Legal Research Anderson,
ATTORNEYS FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION,
CATO INSTITUTE, DRUG POLICY ALLIANCE, FINES AND FEES JUSTICE
CENTER, LAW ENFORCEMENT ACTION PARTNERSHIP, & R STREET
INSTITUTE Joshua S. Lipshutz Gibson, Dunn & Crutcher LLP
Washington, D.C. Brian J. Paul Andrew D. Dettmer Faegre Baker
Daniels LLP, Thomas Q. Swanson Daniel L. Chen Gibson, Dunn
& Crutcher LLP San Francisco, California
ATTORNEY FOR AMICUS CURIAE FOUNDATION FOR MORAL LAW Richard
A. Greenwalt Greenfield, Indiana
ATTORNEY FOR AMICI CURIAE STATES OF UTAH, ARKANSAS, HAWAII,
LOUISIANA, OKLAHOMA, AND TEXAS Kevin S. Smith Special
Assistant Utah Attorney General Fishers, Indiana
Massa, and Goff Justices concur. Justice Slaughter dissents
with separate opinion.
forfeiture of property is a powerful law-enforcement tool. It
can be punitive and profitable: punitive for those whose
property is confiscated; and profitable for the government,
which takes ownership of the property.
civil forfeiture is even partly punitive, it implicates the
Eighth Amendment's protection against excessive fines.
And since that safeguard applies to the states through the
Fourteenth Amendment, we now face two questions left open by
the Supreme Court of the United States. First, how should
courts determine whether a punitive, in rem
forfeiture is an excessive fine? And second, would forfeiture
of Tyson Timbs's vehicle be an excessive fine?
answer the first question with an analytical framework
similar to those of almost all courts to have addressed the
issue. For the second question, we remand for the trial court
to determine, based on that framework, whether Timbs has
cleared the hurdle of establishing gross disproportionality,
entitling him to relief.
and Procedural History
Timbs started taking prescription hydrocodone pills for foot
pain in 2007. He soon became addicted and supplemented his
prescription with pain pills he bought on the street. When
those became unavailable, he turned to heroin.
addiction treatment, Timbs continued to use; and when he
failed a drug screen, he lost his job. He got clean for a
while but began using again after his father died in 2012.
his father's life insurance policy, Timbs received
approximately $73, 000. With about $42, 000 of those
proceeds, he purchased a Land Rover. He spent the rest on
clothes, shoes, and heroin, with over $30, 000 going to the
would obtain heroin by regularly driving his Land Rover sixty
to ninety miles to meet his supplier. These trips accounted
for most of the 16, 000 miles Timbs put on the vehicle over
four months. Eventually, a confidential informant told police
officers on a drug task force that Timbs would possibly sell
heroin. Timbs had never sold before, but the officers devised
a controlled-buy plan.
first buy took place on May 6, 2013, at an apartment near
Timbs's residence. Timbs drove his Land Rover to the
apartment, bringing two grams of heroin with him for the
sale. At the apartment, Timbs gave the drugs to the
confidential informant, and an undercover police officer gave
Timbs the agreed-upon $225. Before Timbs departed in the Land
Rover, the officer mentioned contacting Timbs for another
two weeks later, a second buy took place at a gas station
close to Timbs's residence. Timbs arrived on foot with
two grams of heroin, which he gave to an undercover officer
the next week, officers set up a third buy, which was to take
place at a hotel. But the sale did not occur. Before Timbs
arrived at the meeting place on the scheduled day, police
stopped him in his Land Rover for a traffic violation.
Officers immediately seized the vehicle and took Timbs and
his passenger into custody. Neither individual had heroin
with him in the vehicle. Without drugs for the sale, they had
planned to drive off with the purchase money once the buyer
handed it over.
State charged Timbs with three offenses: two counts of Class
B felony dealing in a controlled substance, Ind. Code §
35-48-4-2(a)(1) (2012); and one count of Class D felony
conspiracy to commit theft, I.C. §§ 35-43-4-2(a),
-41-5-2. The trial court found Timbs indigent and appointed a
public defender for the criminal case.
entering into a plea agreement, Timbs pleaded guilty to one
count of dealing and the conspiracy charge, and the State
dismissed the other count of dealing. The court sentenced
Timbs according to the plea agreement's terms: the
sentence for dealing-six years' imprisonment with five
years suspended to probation and one year executed on home
detention-would run concurrent with a lesser sentence for the
conspiracy conviction. Also, as part of his sentence, Timbs
was required to participate in a drug-and-alcohol program;
pay the $400 program fee; reimburse the drug task force $385
for the cost of its investigation; and pay $418 in court
costs and other fees.
addition to prosecuting the criminal case against Timbs, the
State filed a civil complaint for forfeiture of the Land
Rover, bringing the action against the property, or in
rem, with Timbs as a named party in interest. In its
complaint, the State alleged:
1. On or about May 31, 2013, officers of the . . . Drug Task
Force, seized from the Defendant, TYSON TIMBS, One (1) 2012
Land Rover LR2 . . . in Grant County, Indiana.
2. On said date and at said place, the Defendant, TYSON
TIMBS, had in his possession, the above described vehicle,
said vehicle had been furnished or intended to be furnished
by Defendant, TYSON TIMBS, in exchange for an act that is in
violation of a criminal statute, or used to facilitate any
violation of a criminal statute or is traceable as proceeds
of the violation of a criminal statute under Indiana law, as
provided in I.C. 34-24-1-1.
3. The Defendant, TYSON TIMBS, is the owner of the vehicle.
hearing, the court made factual findings and entered judgment
in Timbs's favor. The court reasoned that forfeiture of
the vehicle would be grossly disproportional to the gravity
of Timbs's dealing offense- which carried a maximum
statutory fine of $10, 000 (about one-fourth the Land
Rover's market value at the time Timbs purchased it five
months earlier)-so the forfeiture would violate the Eighth
Amendment's Excessive Fines Clause.
State appealed, and our Court of Appeals affirmed. State
v. Timbs, 62 N.E.3d 472, 473, 477 (Ind.Ct.App. 2016). We
granted the State's petition to transfer and reversed.
State v. Timbs, 84 N.E.3d 1179, 1180-81, 1185 (Ind.
2017). Without reaching the excessiveness question, we held
that the Excessive Fines Clause of the Eighth Amendment had
not been incorporated against the States. Id. at
petitioned the Supreme Court of the United States for
certiorari. The Court granted his petition and held that the
Excessive Fines Clause applies to the States through the
Fourteenth Amendment. Timbs v. Indiana, 139 S.Ct.
682, 687 (2019). The Court accordingly vacated our prior
decision and remanded the case back to us. Id. at
ordered additional briefing and oral argument and now address
the merits of the constitutional issue.
asserts that the statute under which the State sought
forfeiture of the Land Rover is unconstitutional as applied
to the facts of this case. His claim involves several layers
accept the trial court's factual findings unless they are
clearly erroneous. Ind. Trial Rule 52(A); Hitch v.
State, 51 N.E.3d 216, 226 (Ind. 2016). But we review the
court's excessiveness decision de novo, as it requires
application of a constitutional standard. See United
States v. Bajakajian, 524 U.S. 321, 336-37 & n.10
(1998); State v. Thakar, 82 N.E.3d 257, 259 (Ind.
2017). Finally, we presume the statute is constitutional and
"resolve all reasonable doubts concerning [the] statute
in favor of constitutionality." Thakar, 82
N.E.3d at 259 (quoting Tiplick v. State, 43 N.E.3d
1259, 1262 (Ind. 2015)).
Discussion and Decision
Eighth Amendment guarantees that "[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII.
These guarantees "place 'parallel limitations'
on 'the power of those entrusted with the criminal-law
function of government.'" Timbs, 139 S.Ct.
at 687 (quoting Browning-Ferris Indus. of Vt., Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 263 (1989)).
issue is the Excessive Fines Clause, which applies only to
fines, or "payment[s] to a sovereign as punishment for
some offense." Browning-Ferris, 492 U.S. at
265. Because the Clause has received little attention in
Supreme Court precedent, courts in recent decades have been
grappling with the question of what makes an in rem
fine excessive. We address that question today-finding
guidance in cases from the Supreme Court, especially
Austin and Bajakajian, and in the history
of both the Excessive Fines Clause and forfeitures.
first, we must determine whether forfeiture of Timbs's
Land Rover is a fine, bringing it within the scope of the
Excessive Fines Clause.
Forfeiture of Timbs's vehicle is a fine.
parties agree that forfeiture of Timbs's Land Rover is at
least partly punitive, making it a fine subject to the
Excessive Fines Clause. We also agree.
State sought forfeiture of the Land Rover under Indiana Code
section 34-24-1-1(a)(1)(A). This statute authorizes use-based
forfeitures- forfeitures based on the property's use in a
crime-of vehicles used in the commission of certain drug
offenses. Specifically, the statute states that "[a]ll
vehicles" may be seized for forfeiture "if they are
used or are intended for use by the person or persons in
possession of them to transport or in any manner to
facilitate the transportation of . . . [a] controlled
substance for the purpose of committing, attempting to
commit, or conspiring to commit any of" the listed drug
offenses. I.C. § 34-24-1-1(a)(1) (2012 & Supp.
question is whether a use-based forfeiture authorized by this
statute is punitive and thus a fine. In Austin v. United
States, the Supreme Court set out a way to answer that
question. 509 U.S. 602 (1993). There, the Government sought
forfeiture-under two statutory provisions-of a mobile home
and auto shop, based on the property's use to commit or
facilitate a federal drug offense. Id. at 604-05,
605 n.1, 620 (forfeiture under 21 U.S.C. §§
881(a)(4), (7) (1988)). The Court concluded that such a
forfeiture was at least partially punitive, bringing it
within the ambit of the Excessive Fines Clause. Id.
reaching this conclusion, the Court took a categorical
approach, asking whether the two statutory provisions,
"as a whole," served a punitive purpose.
Id. at 622 n.14; see United States v.
Ursery, 518 U.S. 267, 287 (1996) (noting that
Austin's approach is "wholly distinct
from" a case-by-case analysis). The Court found that
they did for two key reasons: first, the provisions focused
on the owner's involvement in a crime (by linking the
forfeiture to specific offenses and by including an
"innocent owner" defense); and second, the value of
the forfeitable property bore no relationship to reparative
costs. Austin, 509 U.S. at 619-22. Thus, forfeitures
under the two provisions were fines. Id. at 622. And
it did not matter whether, in some cases, forfeitures under
the provisions would be purely remedial. Id. at 622
n.14. The Court's categorical analysis would still
identify those forfeitures as fines, though their entirely
remedial character would make them not excessive.
the provisions in Austin, Indiana Code section
34-24-1-1(a)(1)(A) is punitive by design. The statute focuses
on the owner's involvement in a crime-as it ties each
forfeiture to the commission of a drug offense, and an
accompanying "innocent owner" provision guards
against forfeiting vehicles from owners who are uninvolved in
the underlying offense. See I.C. §
34-24-1-4(a); cf. Austin, 509 U.S. at 619-20. Also,
the value of the forfeiture is neither a fixed sum nor linked
to the harm caused by the underlying crime; the vehicles'
values "can vary so dramatically that any relationship
between the Government's actual costs and the amount of
the sanction is merely coincidental." Austin,
509 U.S. at 622 n.14. Unsurprisingly, then, the State
acknowledged at oral argument that the statute has punitive
as well as remedial functions.
forfeitures under Section 1(a)(1)(A) are fines to which the
Excessive Fines Clause applies. Because forfeiture of
Timbs's Land Rover is such a fine, we now turn to the
contours of the protection against excessiveness.
When is a use-based in rem fine excessive?
parties disagree about how to measure excessiveness.
State argues that the excessiveness of an in rem
fine turns on a single determination: if the property was an
instrument of crime, then its forfeiture is not
excessive-full stop. The State reasons that, given the history
of in rem forfeitures, the Excessive Fines Clause
"requires only that the property forfeited be a genuine
criminal instrumentality." State's Opening Br. at
urges us to recognize that the Excessive Fines Clause
includes both an instrumentality limitation and a
proportionality limitation. He says analyzing excessiveness
entails two main questions. Was the property instrumental in
the underlying crime? And, if so, would the property's
forfeiture be grossly disproportional to the gravity of the
offense? Timbs asserts that these inquiries focus on several
considerations-how closely the property and predicate offense
are linked; the claimant's blameworthiness; and the
harshness of the forfeiture's effects. He maintains,
though, that an excessiveness determination is
"factually intensive," making "a
one-size-fits-all test or a weighting for the factors"
inappropriate. Timbs's Opening Br. at 16 (quoting
United States v. 829 Calle de Madero, 100 F.3d 734,
738 (10th Cir. 1996)).
understand and resolve the disagreement over the appropriate
measure of excessiveness, we first review Supreme Court
guidance in Austin and Bajakajian.
A. Supreme Court precedent provides
Austin, the Court recognized that the Excessive
Fines Clause applies to some in rem forfeitures,
given those forfeitures' punitive nature. 509 U.S. at
621-22. In doing so, Austin confirmed that, even if
in rem forfeitures were not historically deemed
fines (thus placing them beyond the Excessive Fines Clause),
they were understood, at least in part, as punishments.
Id. at 618. Likewise, in rem forfeitures
today may be punitive. So, after Austin, historical
legal fictions behind traditional in rem forfeitures
do not prevent courts from recognizing when a modern in
rem forfeiture is a fine. See id. at 621-22.
Austin did not prescribe how to determine the
excessiveness of in rem fines.
Id. at 622-23. It instead left that question to the
lower courts, emphasizing that its decision "in no way
limits" consideration of multiple factors in addition to
whether the confiscated property has a close enough
relationship to the offense. Id. at 623 n.15.
years after Austin, the Court in Bajakajian
supplied a method for determining the excessiveness of an
in personam fine-a punitive forfeiture obtained
through an action against a person rather than against the
property itself. United States v. Bajakajian, 524
U.S. 321, 336-37 (1998). There, the Court recognized that the
principle of proportionality between crime and punishment is
central to whether a fine is unconstitutional under the
Excessive Fines Clause. Id. at 334 (citing
Austin, 509 U.S. at 622- 23 and Alexander v.
United States, 509 U.S. 544, 559 (1993)). And to
determine whether certain forfeitures are excessive fines, a
gross-disproportionality standard, as opposed to a
strict-proportionality one, is appropriate. Id. at
336. Though Bajakajian did not concern an in
rem forfeiture, portions of its reasoning extend to
modern in rem fines as well. Id. at 331
Bajakajian, the forfeiture was based on a
defendant's conviction for failing to report that he was
transporting over $10, 000 in currency out of the United
States. Id. at 325. The Government sought forfeiture
of the $357, 144 that the defendant failed to declare.
Court observed that the forfeiture was a fine-it derived from
the historical tradition of punitive, criminal forfeitures
and was designed to punish the offender. Id. at
331-33. This punitive identity, the Court explained, made the
forfeiture differ from traditional in rem
forfeitures, which were considered nonpunitive and thus not
fines. Id. But the Court noted, referencing